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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


SELECTION    OF   CASES 


ON 


THE  LAW  OF  CARRIERS. 


BY 

JOSEPH   HENRY   BEALE,  Jr., 

PROFESSOR   OF    LAW    IN   HARVARD   UNIVERSITY. 


Part  I. 


CAMBRIDGE: 

HARVARD  LAW  REVIEW  PUBLISHING  ASSOCIATION. 

1898. 


Copyright,  1898, 
By  Joseph  Henkt  Beale,  Jr. 


2SttiiJcrsttg  ^rcss: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


CASES  ON  THE  LAW  OF  CAERIERS. 


HISTORICAL   INTRODUCTION. 

PRIOR  OF  BRINKBURN  v.  WILLIAM  DE   WHELPINGTON. 
Northumberland  Iter  coram  Metingham,  J.,  1299. 

[Brinkburn   Chartulary,  105.] 

Willelmus  [de  Whelpington]  snmmonitus  fuit  ad  respondendum 
Priori  de  Brinlvebiirne  de  placito  quod  reddat  ei  tres  cartas,  quas  ei  injuste 
detiiict.  Et  unde  queritur  quod  cum  praedictus  Prior  tradidisset  eidem 
Willelmo  tres  cartas  .  .  .  apud  Brinkeburne  custodiendas  et  eidem 
Priori  liberandas  cum  ab  ipso  fuerit  requisitus,  praedictus  Willelmus 
praedictas  tres  cartas  dicto  Priori  reddere  contradixit,  licet  saepius 
super  hoc  fuerit  per  ipsum  Priorem  requisitus,  et  adhuc  reddere  contra- 
dicit,  unde  dicit  quod  deterioratus  est  et  ad  dampnum  liabet  ad  valentiam 
viginti  marcarum.     Et  inde  producit  sectam. 

Et  W.  venit,  etc.,  et  bene  cognoscit  praedictas  cartas  ei  fuisse,  sicut 
praedictus  Prior  asserit,  liberatas  eidem  Priori  liberandas  cum  illas 
petierit.  Set  dicit  quod  die  Sabbati  proxima  post  festum  Sancti 
Jobannis  Baptistae  anno  regni  Regis  praedicti,  latrones  ignoti  ad 
domum  suum  apud  AVhelpington  noctanter  accesserunt,  ac  bona  et 
catalla  sua  siuiul  cum  duabus  cartis  ibidem  inventis  ceperunt  et 
asportaverunt,  et  impressionem  sigillorum  de  duabus  cartis  abstrax- 
erunt,  et  scripta  ibidem  reliqueruht,  quas  hie  in  Curia  profert.  Et 
tertiam  cartam  integram  .  .   .  eidem  Priori  liberavit. 

Et  praedictus  Prior  per  Willelmuin  de  Denum,  attornatum  suum.  hoc 
idem  cognoscit,  et  praedictas  duas  cartas  sic  confractas  hie  in  Curia 
admisit,  et  bene  concedit  illas  eodem  modo  quo  praedictus  W.  asserit 
fuisse  per  latrones  ablatas. 

Ideo  praedictus  Willelmus  quietus,  etc. 

Y.  B.  8  Ed.  11. ,  275  [1315].  William  le  Bonion,  Clerk,  brings  his 
writ  of  Detinue  of  Chattels,  against  one  Maude,  and  counted  that  he 
detained  from  him  wrongfully',  etc.,  the  said,  etc.,  that  is  to  say,  rings, 
a  silver  vessel,  and  other  jewels. 

Mifjham.  Sir,  we  tell  you  that  this  same  W.  bailed  us  to  guard  a 
locked  chest  without  the  ke^-,  and  he  carried  off  the  key  himself,  and 

1 


671007 


2  PEIOR   OF    BRINKBURN   V.    WILLIAM   DE    WHELPINGTON. 

whether  other  things  were  stolen,  as  he  says,  we  do  not  know ;  and  we 
tell  you  that  thieves  came  at  night  and  broke  into  the  chamber  of  this 
same  Maude,  and  carried  off  the  chest  with  the  chattels  and  broke 
it  open,  and  carried  off  our  goods  and  chattels  with  it,  ready,  etc. 

Russell.  That  he  bailed  to  you  the  jewels  aforesaid  outside  the 
chest,  and  desired  you  to  return  them  at  his  will,  ready,  etc.  Et  alii 
quod  no?i.^ 

Y.  B.  12  &  13  Ed.  III.  244  [1339].  Detinue  of  chattels  to  the 
value  of  lOOL  against  an  Abbot  b^-  a  man  and  his  wife,  on  a  bailment, 
made  b}-  the  father  of  the  wife  when  she  was  under  age,  of  chattels  to 
be  delivered  to  his  daughter,  when  she  was  of  full  age,  at  her  will ;  and 
they  counted  that  he  delivered  pots,  linen,  cloths,  and  20^.  in  a  bag 
sealed  up,  etc. 

Pole.  He  demands  money,  which  naturally  sounds  in  an  action  of 
debt  or  account ;  judgment  of  the  count. 

Stouford.  We  did  not  count  of  a  loan  which  sounds  in  debt,  nor  of 
a  receipt  of  mone}^  for  profit,  which  would  give  an  action  of  account, 
but  of  mone}-  delivered  in  keeping  under  seal,  etc.,  which  could  not  be 
changed  ;  and  if  your  house  were  burnt,  that  would  be  an  answer. 

ScHARDELOWE,  J.     Answer  over. 

Pole.  We  do  not  detain  in  manner  as  he  has  counted  ;  ready  to 
defend  bj'  our  law. 

Stouford.  We  have  counted  of  the  bailment  made  by  another ; 
wherefore,  do  you  intend  this  to  be  your  answer? 

Y.  B.  22  Lib.  Assis.  pi.  41  [1348].  I.  de  B.  complains  by  his  writ 
that  G.  de  F.  on  a  certain  day  and  year  at  B.  upon  Humber  had  under- 
taken to  carry  his  mare  taken  on  his  boat  over  Humber  water  safe  and 
sound  ;  whereas  the  said  G.  overloaded  his  boat  with  other  horses,  b}'^ 
reason  of  which  overloading  the  mare  perished,  to  his  wrong  and 
damage,  etc. 

Richmond.  Judgment  of  the  writ ;  for  he  does  not  allege  an}^  tort 
in  us  ;  he  only  proves  that  he  would  have  an  action  by  a  writ  by  via,y  of 
covenant,  or  [not?]  by  way  of  trespass:  wherefore,  etc. 

Bankwell,  J.  It  seems  that  j'ou  committed  a  trespass  when  you 
overloaded  the  boat,  whereby  his  mare  perished,  etc. ;  therefore  answer. 

Richmond.     Not  guilty.^ 

Y.  B.  29  Lib.  Ass.  163,  pi.  28  [1355].  Suit  was  brought  in  the 
Exchequer  by  the  King's  debtor,  etc.,  for  a  cup  which  was  bailed  b^'  him 
to  the  defendant,  etc.     And  the  defendant  said,  that  the  plaintiff  bailed 

1  Certain  obvious  errors  in  this  case  have  been  corrected  from  tlie  version  given 
in  Fitzherbert's  Abridgment,  Detinue,  pi.  59.  That  version  ends  as  follows  :  "Russell. 
Not  carried  away  by  thieves,  ready,  etc.  Etalii  e  contra.  And  to  this  issue  the  party 
was  driven,  etc."  —  Ed. 

2  See  41  Ed.  III.  3,  pi.  8.  —  Ed. 


THE    INNKEEPEKS    CASE.  6 

the  cup  to  him  in  pledge  for  certain  money,  etc.,  and  he  put  it  with  his 
own  goods,  etc.,  wliich  were  stolen  from  him.  To  which  the  plaintilf 
was  driven  to  answer :  who  said,  that  he  tendered  the  money  before  the 
theft,  and  the  defendant  refused  it,  judgment,  etc.  And  he  tendered 
averment  that  he  did  not  tender  before  taking ;  and  tlie  other  was 
driven  by  award  to  aver  tlie  tender  before  the  theft,  etc.  For  W.  Thoki'e, 
B.,  said,  that  if  one  bails  me  his  goods  to  keep,  and  I  put  them  with 
mine  and  they  are  stolen,  I  shall  not  be  charged,  etc.      Quod  nota. 

Cateshy  in  Y.  B.  2  R.  III.  14,  pi.  39  [1478].  By  this  action  he  asks 
nothing  but  an  account,  which  clearly  disaffirms  property-,  etc.  ;  for  may 
be  that  in  a  writ  of  account  the  plaintiff  shall  recover  nothing ;  for  if 
the  tiling  delivered  was  of  the  value  of  20^.,  if  the  defendant  alleges 
upon  his  account  that  he  adventured  by  land  and  was  percase  robbed, 
or  on  sea  and  lost,  if  it  be  found  so,  the  plaintiff  shall  recover  nothing ; 
for  he  demands  nothing  but  an  account,  and  more  he  shall  not  have,  be 
it  more  or  less. 


THE  INNKEEPER'S  CASE. 

Common  Pleas,   1410. 
[Y.B.  11  Hen.IV.ib,  pi.  18.] 

A  MAN  brought  a  writ  of  Trespass  against  an  innkeeper,  and  declared 
that  by  the  Common  Law  each  innkeeper  is  obliged  safely  to  keep  the 
things  w^iich  are  within  his  inn  ;  and  declared  that  he  was  lodged  with 
him  at  a  certain  time,  and  that  his  horse  was  stolen  while  within 
the  inn. 

Skrene.  Protesting  that  we  are  not  a  common  innkeeper,  we  say 
that  the  plaintiff  came  to  us  towards  night  and  praj'ed  to  be  received 
into  our  house  ;  and  we  told  him  that  we  could  not  be  bound  to  him, 
because  earl}^  the  next  morning  we  had  to  be  before  the  sheriff,  to 
extend  certain  lands  by  the  King's  writ.  And  thereupon  he  prayed  us 
to  give  him  a  ke}-  of  his  chamber,  and  another  of  the  stable  where  he 
should  put  his  horse  ;  and  we  gave  him  those  same  ke3-s,  and  went  our 
way  that  same  night.  And  we  praj'  judgment  if  he  may  maintain  this 
action  against  us,  etc. 

Tildesley.  Protesting  that  we  do  not  admit  that  he  gave  us  such 
notice  of  his  going  away  as  he  has  spoken  of  until  after  we  were  lodged 
with  him,  and  that  meanwhile  our  hoi'se  had  been  stolen  from  within  his 
inn,  we  pray  judgment,  and  ask  for  our  damages.     Et  sic  ad  judicium. 

Hankford,  J.,  to  SJvrene.  You  have  not  alleged  that  3'ou  were  sum- 
moned or  distrained  to  come  before  the  sheriff,  nor  in  fact  have  you 
alleged  that  you  went  to  tlie  sheriff  and  gave  attendance  upon  him  by 
authority  of  the  law  ;  but  you  have  said  onlv  that  you  gave  notice  to  the 
plaintiff  that  you  were  going  :    and  if  you  were  not  there,   he  may 


4  HOKSLOW  S   CASE, 

have  a  traverse  of  it.  And  though  a  common  innkeeper  make  promise 
b}'  his  own  head  to  speak  with  a  sheriff  or  other  man,  if  lie  suffers 
one  to  lodge  with  him  he  answers  for  his  goods  ;  and  he  is  bound  to 
have  deputies  and  servants  under  him,  for  well  keeping  the  inn  during 
his  absence, 

Skrene.  When  1  alleged  such  notice  given  to  him  as  to  what  I  had 
to  do  before  the  sheriff,  it  is  to  be  taken  as  true  in  fact,  since  it  is  not 
traversed  b}'  the  other  part}'. 

Hill,  J,  The  bailment  of  the  kej-s  in  this  case  is  nothing  to  the  pur- 
pose in  discharging  the  innkeeper,  as  was  adjudged  long  before  his  day 
{quodficit  concessum  per  Justiciarios)  ;  but  when  the  defendant  gave 
notice  to  him  that  he  could  not  attend  to  him  causa  ut  supra^  and 
thereupon  the  plaintiff  took  lodging  at  his  peril,  he  discharged  the  inn- 
keeper, and  took  the  charge  upon  himself;  wherefore,  etc. 

Thirning,  C.  J.  The  plaintiff  in  this  case  in  his  declaration  has  not 
declared  that  it  was  a  common  inn.  Nothing  is  alleged  of  record  in 
proof  of  it,  but  in  the  declaration  he  has  declared  the  common  custom 
as  to  common  inns,  and  then  in  the  conclusion  he  has  alleged  nothing, 
but  that  he  was  lodged  with  him,  so  the  matter  in  itself  is  not  sufficient 
to  maintain  the  action  ;  for  though  a  man  who  is  not  a  common  inn- 
keeper lodge  me  in  his  inn,  he  shall  not  answer  for  my  goods. 

Qxodfuit  concessum.      JVbta  this  reason. 

Tremxtyne.  When  I  declared  that  I  was  lodged  in  his  inn,  it  is  in- 
tended that  he  is  a  common  innkeeper. 

Thirning,  C.  J.  An  action  cannot  be  maintained  b}'  argument  nor 
by  intendment,  but  b}-  sufficient  matter  included  and  declared.  Where- 
fore it  is  better  for  j-ou  that  3-our  writ  be  abated  for  defect  of  your 
declaration,  and  that  3-ou  pursue  a  better  action. 

Tremayne.   He  has  accepted  our  declaration  as  good,  wherefore,  etc. 

Hankford,  J.  No  matter  if  he  has  accepted  an^'thing,  the  court 
does  not  allow  it. 

Then  the  record  was  read,  and  found  as  Thirning  had  said,  etc. 

Hankford,  J,  (ex  assensu  o^nnium  socioruni).  You  take  nothing 
by  your  writ,  etc.,  but  you  are  in  mere}',  etc. 


HORSLOW'S   CASE. 

Common  Pleas,  1444, 

[Y.  B.  22  Hen.  VI.  21,  /)/.  38.] 

Writ  of  trespass  on  the  case  was  brought  against  W,  Horslow, 
laborer,  because  the  Common  Law  of  the  land  is  that  the  innkeepers  who 
keep  common  inns  ought  to  safeguard  the  goods  of  those  who  are  lodged 
in  their  inns,  so  that  no  damage  should  happen  to  them  bj"  persons  un- 
known ;  and  the  plaintiff  alleged  how  certain  of  his  goods  (and  alleged 


HORSLOW  S   CASE.  5 

what)  were  taken  out  of  his  possession  in  the  defendant's  house  by 
persons  unknown. 

Prisot.  Judgment  of  the  writ ;  for  tlie  writ  is,  Cum  secundum  legem 
&  cons.  Hegn't,  etc.,  in  which  case  it  appears  tliat  the  matter  aforesaid 
lies  in  custom,  wliich  shall  not  be  intended  the  Common  Law,  etc. 

Newton,  C.  J.  Wliat  is  custom  of  the  land  but  the  law  of  the 
land?     Therefore  answer  this. 

Murkum,.  In  Kent  perhaps  the  writ  does  not  rehearse  their  cus- 
toms, sc.  cum  secundum  Legem  &  consuetudinem,  etc.,  because  they 
have  divers  customs  which  do  not  extend  except  within  said  county, 
but  this  is  a  custom  and  a  law  throughout  all  the  realm. 

Prisot.  Yet  judgment  on  the  writ ;  for  the  custom  is  rehearsed  as  of 
common  inns,  and  by  the  writ  and  count  it  is  not  alleged  that  the 
defendant's  house  in  wliich  the  goods  were  taken  is  a  common  inn  ;  where- 
fore may  be  it  is  not  a  common  inn  ;  and  if  one  be  lodged  with  me,  or  in 
the  house  of  a  husbandman  who  is  not  a  common  innkeeper,  though  his 
goods  are  taken  out  of  his  possession,  still  he  lacks  an  action. 

Newton,  C.  J.  The  exception  is  good,  and  will  be  corrected  at 
another  day. 

Marham.     "We  will  waive  this  writ,  and  take  another. 

Proion.  This  writ  is  good,  and  the  practice  nootlier  :  and  cited  two 
or  three  precedents. 

Prisot.  All  those  writs  are  Pone,  etc.,  such  a  one,  innkeeper,  and 
can  be  understood  no  otherwise  except  that  his  house  is  a  common  inn  ; 
but  in  the  case  at  bar  the  defendant  is  not  named  innkeeper,  but 
W.  Horslow,  laborer. 

Brown.  The  addition  should  not  be  given  in  this  action,  because 
process  of  outlawr}'^  does  not  lie  in  said  action. 

Newton,  C.  J.  A  laborer  may  hold  a  common  inn,  and  e  contra  an 
innkeeper  may  have  other  houses  to  lodge  with  his  license  and  good  will. 

Prisot.  If  action  be  brought  against  the  Warden  of  the  Fleet  or 
the  Marshal  in  the  King's  Bench  because  of  their  office,  they  should  be 
named  in  their  writ  by  the  name  of  their  office  ;  so  it  seems  in  the  case 
at  bar,  the  defendant  should  be  named  innkeeper. 

Newton,  C.  J.  In  the  case  you  have  put  the  law  is  as  you  say  ;  but 
I  may  have  a  common  inn  and  yet  such  a  writ  brought  against  me  by 
my  own  name  is  good.  And  in  the  case  at  bar  if  the  house  was  not  a 
common  inn  you  may  suggest  it  and  take  advantage  of  it  by  way  of  plea. 

Ascue,  J.  It  seems  for  another  reason  that  the  writ  is  abatable  ; 
for  the  writ  does  not  mention  that  the  goods  were  carried  into  the  inn 
and  lodged  in  it,  and  carried  out  of  said  inn  ;  but  the  writ  is,  C.  shil- 
lings, etc.,  of  the  plaintifT  in  hos2ncio  of  the  defendant  hospitati  cepe- 
runt  S  asportaverunt,  and  this  word  hospitati  refers  to  the  person  of 
the  plaintiff  and  not  to  the  hundred  shillings  ;  for  then  it  would  be 
hospitantes  vel  hospitatos  ;  and  it  may  be  by  the  writ  that  the  plaintiff 
might  lodge  in  the  house  of  the  defendant  and  that  the  goods  were  in 
the  house  of  another  person  and  carried  away  ;  wherefore  it  seems  that  the 


6  THE   marshal's   CASE. 

writ  should  be,  ihidem  inventos  cepit  ijt  as^^ortavit.    And  for  this  reason 
the}'  were  adjourned.     And  at  another  day  the  writ  was  held  good,  etc. 

Prisot.  You  ought  not  to  have  an  action,  for  we  ourselves  delivered 
to  the  plaintiff  a  chamber  and  a  key  to  it  to  have  and  hold  in  his  care 
to  safeguard  his  goods  ;  and  we  say  that  the  plaintiff  brought  with  him 
certain  persons  unknown  into  his  chamber,  who  took  the  said  goods. 
Judgment  if  action. 

3Iarkam.  That  plea  amounts  to  no  more  than  that  the  goods  were 
not  taken  in  j'our  default. 

Newton,  C.  J.  The  plea  is  good,  if  he  give  names  in  certain  to 
those  who  took  the  goods ;  for  the  persons  are  unknown  to  him,  and 
for  such  a  taking  the  law  excuses  him. 

Wherefore  Prisot  alleged  their  names,  sc.  Tho.  T.  and  W. 

Markam.  Said  T.  &  W.,  whom  we  carried  with  us  into  the  chamber 
did  not  carry  away  the  goods. 

Newton,  C.  J.  That  is  a  negative  pregnant ;  one,  that  the}-  did  not 
carr}'  away  the  goods  ;  the  other,  that  the}'  did  not  come  into  his  chamber 
at  his  request ;  but  the  plea  is  good,  that  the  said  W.  and  T.  did  not 
carry  away  said  goods ;  or  else  3-ou  may  den}'  that  the  said  W.  and 
T.  came  into  the  said  chamber  at  your  request. 

Prisot.  To  oust  ambiguities  we  say  that  the  goods  were  not  carried 
awa}-  in  our  default. 

FuLTHORPE,  J.     That  is  no  issue. 

Brown.     Such  an  issue  has  been  taken  and  entered  before  this  time. 

And  afterwards  Prisot  pleaded  the  first  bar,  as  above. 

Markam.  We  did  not  carrj*  said  W.  and  T.  with  us  into  the  chamber, 
ready.     Et  alii  e  contra. 

Markam.  Still  this  is  perhaps  a  jeofail.  Suppose  I  with  my  good 
will  suffer  a  stranger  to  lodge  with  me  in  the  inn,  and  in  my  chamber, 
which  stranger  robs  me,  and  I  do  not  know  him,  shall  not  the  innkeeper 
be  charged  with  it? 

Newton,  C.  J.,  and  All  the  Court.  No,  sir,  when  he  was  not  lodged 
in  your  chamber  by  the  innkeeper,  but  by  3-our  own  sufferance ;  but  if 
he  was  lodged  with  you  by  the  innkeeper,  then  the  innkeeper  shall  be 
charged.  And  suppose  that  j'our  own  servant  who  is  with  you  in  the 
inn  robs  you,  shall  the  innkeeper  be  charged  ?  Certainlj^  not.  Therefore 
the  issue  is  good. 


THE  MARSHAL'S   CASE. 

Common  Pleas,  1455. 
[Y.B.%2,nen.  VI.\,pl.Z.] 

Debt  was  brought  against  the  marshal  of  the  King's  Bench.  And 
the  plaintiff  counts  on  the  Statute,  and  that  one  T.  who  was  condemned 
to  the  plaintiff  in  a  certain  sum  in  an  Assize  of  Novel  Disseizin  sued  a 


THE    MARSHAL  S   CASE.  7 

writ  of  Error  before  the  King ;  and  then  the  judgment  was  affirmed, 
and  the  said  T.  was  put  in  guard  to  the  Marshal  for  the  sum  ;  and  that 
he  let  him  go  at  large,  to  his  wrong  and  damage. 

Choke.  No  action  lies  ;  for  he  says  that  a  great  multitude  of  the 
King's  enemies  on  such  a  day  and  year  came  to  Southwark  and  they 
then  broke  open  the  prison  of  our  Lord  the  King,  and  took  the  pris- 
oners then  therein  out  of  the  prison,  to  wit  the  said  T.  and  others,  and 
carried  them  away  against  the  will  of  the  Marshal ;  without  this,  that 
he  let  him  go  at  large  aUter  vel  aliquo  alio  modo. 

Billing  and  Laicon.     To  tiiis  plea  pleaded  in  manner,  etc. 

Choke.  If  enemies  from  France  or  other  enemies  of  the  King  were 
here,  the  Marshal  would  be  discharged  ;  as  if  the}'  had  burned  a  house 
of  a  tenant  for  life,  he  should  be  discharged  of  waste  ;  or  otherwise  if 
the  house  were  burned  by  a  sudden  tempest,  then  he  would  be  discharged; 
so  here. 

Dakbt,  J.  In  j-our  case  of  the  King's  enemies  and  of  the  sudden 
tempest  it  is  right ;  for  then  there  was  no  remedy  against  any  one  ;  but 
it  is  otherwise  where  sulijects  of  the  King  do  it ;  for  there  you  may 
have  action  against  them. 

Choke.     Sir,  the  Captain  is  dead,  and  all  the  others  are  unknow^n. 

Prisot,  C.  J.  If  they  were  subjects  of  the  King,  they  could  not  be 
called  enemies  of  the  King,  but  traitors  ;  for  enemies  are  those  who  are 
out  of  his  allegiance  ;  but  if  they  were  alien  enemies  it  would  be  a  good 
plea  without  any  doubt.  But  if  there  were  twelve  or  twenty  subjects 
of  the  King,  and  unknown,  and  one  night  they  broke  open  the  prison  and 
took  them  out,  etc.,  in  that  case  the  Marshal  shall  be  charged  for  his 
negligent  guard  ;  so  here.  But  if  it  were  b}'  a  sudden  accident  with 
fire,  and  the  prison  were  burned,  and  they  escaped,  perhaps  it  is 
otherwise. 

Choke.  If  a  stranger  comes  to  my  house,  and  by  his  foil}'  burns  it, 
so  that  other  houses  of  my  neighbor  are  burned,  I  shall  not  be  charged 
with  burning  my  neighbor's  house.  And,  sir,  if  a  subject  of  the  King 
joins  with  enemies  of  the  King  like  that,  and  then  they  come  here  and 
do  such  a  thing,  it  shall  be  taken  as  a  thing  done  by  the  King's 
enemy. 

Prisot,  C.  J.  In  your  case  he  shall  not  be  taken  prisoner  here,  and 
[allowed]  to  make  ransom  as  an  enemy  may  ;  but  he  shall  be  taken  as 
traitor  to  the  King. 

Choke.  Then  we  say  that  there  were  4,000  Scots  and  other  enemies 
of  the  King  with  the  other  traitors,  etc. 

Danby,  J.  Then  you  ought  to  allege  the  matter  more  speciall}',  and 
some  of  their  names.     Et  adjoumatur. 

Broke's  Abridgment,  Detinue,  27  [1469].  Account.  Jenney.  If 
I  bail  goods  to  3'ou  and  you  are  robbed  of  them,  that  shall  excuse  you. 
Danby,  C.  J.  If  he  receives  them  to  keep  as  his  own  goods,  then  it  is 
a  good  excuse  ;  and  otherwise  not. 


8  THE    SHEPHERD  S   CASE. 

THE  SHEPHERD'S  CASE. 
King's  Bench,   1487. 
[Y.B.2Hen.  VII.\\,pl  9.] 

The  case  was  such.  A  man  had  a  hundred  lambs  to  keep,  and  negli- 
gentl}'  through  his  default  the^'  were  destroj'ed  bj*  his  sufferance. 

Read.  It  seems  that  the  action  does  not  lie  ;  for  action  on  the  Case 
does  not  lie  for  a  nonfeasance,  for  the  party  shall  have  a  writ  of  Cov- 
enant for  it.  For  if  one  has  cloths  to  keep  and  they  are  motheaten  or 
rotted,  no  action  on  the  Case  lies,  but  action  of  Detinue. 

Wood.  It  seems  to  me  that  the  action  well  lies  ;  for  suppose  one 
takes  upon  himself  to  carry  glass  or  pots,  and  negligently  breaks  them, 
I  shall  have  action  on  my  Case,  etc. 

licble  said  that  nonfeasance  shall  not  give  rise  to  action  on  the  Case  ; 
for  before  the  Statute  of  Laborers  if  a  servant  who  was  hired  would 
not  do  service  to  his  master  no  action  laj-  for  his  nonfeasance,  etc. 

And  it  was  argued,  that  if  any  act  be  done  b}'  the  party,  then  action 
will  lie  well  enough.  As  if  I  bail  a  chest  with  obligations,  and  he 
breaks  into  it,  or  bail  a  horse  to  ride  ten  leagues  and  he  rides  twenty, 
action  on  the  case  lies  ;  or  in  this  case  if  the  party  had  driven  the 
lambs  into  the  water  action  on  the  case  would  lie. 

TowNSEND,  J.  When  the  party  undertook  to  keep  the  lambs,  and 
afterwai'ds  allowed  them  to  be  destroyed  by  his  default,  since  he  had 
taken  them  and  executed  his  bargain,  and  had  them  in  his  custody,  and 
then  did  not  attend  to  them,  aciion  lies.  For  here  is  his  act,  sc.  his 
agreement  with  the  undertaking,  and  this  afterwards  is  broken  on  his 
part,  and  this  shall  give  rise  to  the  action.  And  suppose  a  horse  be 
bailed  to  a  man  to  keep,  and  afterwards  he  does  not  give  him  suste- 
nance, whereby  he  dies,  action  on  the  case  lies.  Or  if  a  carrier  takes  my 
goods  to  carry,  and  afterwards  he  loses  or  breaks  them,  action  lies  to 
make  him  answer  for  it,  because  he  has  not  executed  his  bargain,  and 
has  taken  upon  him  to  do  the  thing.  But  if  a  covenant  were  made  with 
me  to  keep  my  horse  or  to  carry  my  goods,  and  it  was  not  done,  now 
action  of  Covenant  lies,  and  no  other  action  ;  for  in  those  cases  he  never 
executed  his  promise. 

Y.  B.  10  Hen.  VII.  26,  pi.  3  [1495].  JTeble  {arguendo).  I  bail 
deeds  and  evidences  to  a  man  to  guard  generally.  Now  if  his  own 
goods  and  the  evidences  are  stolen,  he  shall  be  excused  towards  the 
party,  as  I  understand,  for  this  keeping  is  chargeable  to  him  to  all  in- 
tents as  reason  may  expound,  as  I  shall  keep  ray  own  goods,  etc.    .   .  . 

FiXEUX,  J.  To  the  contrary,  and  denied  the  case  of  bailment  of 
goods,  and  said  that  the  bailee  should  be  charged  as  he  understood, 
though  his  own  goods  were  stolen. 

Fisher.  To  the  same  intent :  and  said  as  an  innkeeper  has  the  keep- 
ing of  the  goods  ;  he  shall  be  charged  notwithstanding  they  are  stolen, 
and  he  has  no  remedy  over ;  so  here. 


ANONYMOUS.  9 

Doctor  and  Student,  c.  38  [1518].  It  is  commonly  holden  in  the 
laws  of  England,  if  a  common  carrier  go  b}'  the  ways  that  be  danger- 
ous for  robbing,  or  drive  b}-  night,  or  in  other  inconvenient  time,  and 
be  robbed  ;  or  if  lie  overcharge  a  horse  whereby  he  falleth  into  the 
water,  or  otherwise,  so  that  the  stuff  is  hurt  or  impaired  ;  that  he 
shall  stand  charged  for  his  misdemeanor :  and  if  he  would  percase  re- 
fuse to  carry  it,  unless  promise  were  made  unto  him  that  he  shall  not 
be  charged  for  no  misdemeanor  that  should  be  in  him,  the  promise  were 
void,  for  it  were  against  reason  and  against  good  manners,  and  so  it  is 
in  all  other  cases  like.-^ 

FiTZHERBERT,  Natura  Brevium,  94  d  [1534].  If  a  smith  prick  m^' 
horse  with  a  nail,  etc.,  I  shall  have  my  Action  on  the  Case  against  him, 
without  any  warranty  by  the  smith  to  do  it  well.  .  .  .  For  it  is  the  duty 
of  ever}'  artificer  to  exercise  his  art  rightly  and  truly  as  he  ought. 

Dall.  8  [1553].  Note  by  Browne,  J.,  and  Portman,  J.  As  clear 
law  ;  if  a  common  carrier  takes  a  pack  of  stuff  from  a  man  to  carry  it  to 
D.  and  while  in  a  common  inn  the  pack  is  taken  and  stolen,  the  owner 
for  this  shall  have  an  action  against  the  innkeeper  for  the  stuff  and 
the  carrier  shall  not ;  for  the}'  are  not  the  goods  of  the  carrier,  nor 
shall  he  be  charged  with  them  inasmuch  as  he  was  by  law  compellable  to 
carry  them  ;  and  it  is  not  like  where  one  takes  goods  to  carrj'  generalh', 
for  if  he  be  robbed,  it  shall  be  charged  to  the  carrier  for  his  general 
taking,  to  which  he  was  not  compellable,  and  so  he  shall  have  action  over 
in  respect  of  his  liability.  And  2  H.  IV.  the  master  shall  have  action 
for  his  goods  robbed  from  his  servant  in  an  inn,  and  although  there  was 
not  a  direct  writ  for  the  master  in  the  register  in  this  case,  still  by  the 
statute  the  clerks  agree  to  make  a  writ  for  him ;  and  if  it  pass  the 
Chancery  it  is  well  enough.     Hales,  J.,  ace. 


ANONYMOUS. 

Common  Pleas,  1558. 

[Moore,  78,  pL  207.] 

One  came  to  an  inn,  and  the  innkeeper  said  to  him,  "  here  are  per- 
sons resorting  to  this  house,  and  I  know  nothing  about  their  behav- 
ior ;  therefore  take  the  key  of  such  a  chamber  and  put  your  goods  there 
at  your  own  risk,  for  I  will  take  no  responsibility  for  them  ;  "  and  after-, 
wards  the  goods  were  stolen.  The  party  brought  action  on  the  Case' 
against  the  innkeeper. 

Wfcfj/.  The  innkeeper  is  responsible  by  the  law  for  all  the  goods 
which  come  to  his  inn  ;  and  by  the  law  he  cannot  discharge  himself  b}- 
such  words. 

1  Noy  (*1634),  Maxim.'!,  *92,  repeats  this.  —  Ed. 


10  MOSLEY   V.   FOSSET. 

Harper.     We  will  demur. 

Browne,  J.     Then  we  will  qiiiekl}'  make  an  end  of  It. 

Harper.  My  client  has  instructed  me  in  this  way,  and  I  have  no 
more  to  sa}'. 

Browne,  J.  You  have  the  more  to  pay ;  the  innkeeper  may  take 
issue,  that  the  goods  were  not  stolen  by  his  negligence. 


ANONYMOUS. 
Queen's  Bench,  1589. 

[].  Harvard  Manuscript  Reports,  Sa.'] 

It  was  held  by  all  the  Justices  in  the  Queen's  Bench,  that  if  a  man  bail 
certain  cloths  to  a  tailor  to  make  a  robe  of  them,  who  does  so,  and  then 
it  is  stolen  out  of  his  shop,  still  he  shall  be  accountable  for  it ;  the  same 
is  law  of  a  carrier  who  has  anything  for  his  labor.  But  it  is  otherwise 
of  him  who  has  nothing  for  keeping  it,  but  keeps  it  of  his  good  will. 


WOODLIFE'S   CASE. 
Queen's  Bench,  1597. 

[Moore,  462.] 

In  account  upon  merchandise  delivered  for  merchandising,  the  de- 
fendant said  that  he  was  robbed  of  this  merchandise,  and  of  divers 
other  goods  and  chattels  of  his  own. 

PoPHAM,  C.  J.     It  seems  a  good  plea. 

Gawdy,  J.,  e  contra.  It  is  no  plea  for  a  carrier,  because  he  is  paid 
for  the  carriage. 

PopHAM,  J.  But  it  is  a  good  plea  for  a  factor,  servant,  and  the 
like.^ 


MOSLEY  V.  FOSSET. 
Queen's  Bench,  1598. 

[Moore,  543.] 

Action  on  the  case,  and  declares  that  the  defendant  took  from  the 
plaintiff  a  gelding   to  agist  him  for  2s.    a  week,  and  the    defendant 

1  The  same  ease  is  reported  in  1  RoUe's  Abridgment,  2,  as  follows  :  "  If  a  man 
deliver  goods  to  a  common  carrier  to  carry,  and  the  carrier  is  robbed  of  them,  still 
he  shall  be  charged  with  them,  because  he  had  hire  for  them,  and  so  implicitly  took 
upon  him  the  safe  delivery  of  the  goods  ;  and  therefore  he  shall  answer  for  the  value 
of  them  if  he  be  robbed."  —  Ed. 


southcote's  case.  11 

was  to  keep  hira  safely  and  redeliver  when  he  should  be  asked 
to  do  so :  and  alleges  that  he  so  negligently  kept  him  that  he  was 
taken  by  persons  unknown.  The  defendant  demurred,  and  the  Jus- 
tices were  divided,  two  against  two :  Popham,  C.  J.,  and  Fenner,  J., 
that  the  action  does  not  lie  without  alleging  request  for  redelivery,  and 
also  alleging  how  the  horse  was  taken  away,  dead,  or  lost.  Gawdy  and 
Clench,  JJ.,  e  contra,  because  the  action  is  founded  on  the  negligence 
and  the  special  assumpsit  to  keep  safely.  But  all  agree  that  without 
such  special  assumpsit  the  action  does  not  he. 


SOUTHCOTE'S    CASE. 

Queen's  Bench,  1600. 
[4  Coke,  83  h.] 

SouTHCOTE  brought  Detinue  against  Bennet  for  certain  goods,  and 
declared,  that  he  delivered  them  to  the  defendant  to  keep  safe  ;  the 
defendant  confessed  the  delivery,  and  pleaded  in  bar  that  after  the 
delivery  one  J.  S.  stole  them  feloniously  out  of  his  possession  :  the  plain- 
tiff replied,  that  the  said  J.  S.  was  the  defendant's  servant  retained  in  his 
service,  and  demanded  judgment,  etc.  And  thereupon  the  defendant 
demurred  in  law,  and  judgment  was  given  for  the  plaintiff:^  and  the 
reason  and  cause  of  their  judgment  was,  because  the  plaintiff  delivered 
the  goods  to  be  safe  kept,  and  the  defendant  had  took  it  upon  him 
by  the  acceptance  upon  such  deliver}-,  and  therefore  he  ought  to  keep 
them  at  his  peril,  although  in  such  case  he  should  have  nothing  for  his 
safe  keeping.  So  if  A  delivers  goods  to  B  generally  to  be  kept  by 
him,  and  B  accepts  them  without  having  anything  for  it,  if  the  goods 
are  stole  from  him,  3-et  he  shall  be  charged  in  Detinue ;  for  to  be 
kept  and  to  be  kept  safe,  is  all  one.  But  if  A  accepts  goods  of  B 
to  keep  them  as  he  would  keep  his  own  proper  goods,  there,  if  the 
goods  are  stolen,  he  shall  not  answer  for  them :  or  if  goods  ai-e 
pawned  or  pledged  to  him  for  money,  and  the  goods  are  stolen,  he 
shall  not  answer  for  them,  for  there  he  doth  not  undertake  to  keep 
them  but  as  he  keeps  his  own  ;  for  he  has  a  property  in  them  and 
not  a  custodj'  only,  and  therefore  he  shall  not  be  charged  as  it  is 
adjudged  in  29  Ass.  28.  But  if  before  the  stealing  he  who  pawned 
them  tendered  the  money,  and  the  other  refused,  then  there  is  fault 
in  him  ;  and  then  tlie  stealing  after  such  tender,  as  it  is  tliere  held, 
shall  not  discharge  him  ;  so  if  A  delivers  to  B  a  chest  locked  to  keep, 
and  he  himself  carries  away  the  ke}',  in  that  case  if  the  goods  are 
stolen,  B  shall  not  be  charged,  for  A  did  not  trust  B  with  them,  nor  did 
B  undertake  to  keep  them,  as  it  is  adjudged  in  8  E.  11.     Detinue,  59. 

1  Per  Gawdy  et  Clench,  JJ.,  caeteris  absentibus :  see  s.  c.  Cro.  Eliz.  815.  —  Ed. 


12  MORSE    V.   SLUE. 

So  the  doubt  which  was  conceived  upon  sundry  differing  opinions  in 
our  books  in  29  Ass.  28.  3  H.  VII.  4,  6  H.  VII.  12,  10  H.  VII.  26 
of  Keble  and  Fineux,  are  well  reconciled,  vide  Bract,  lib.  2,  fol.  62  b. 
But  in  accompt  it  is  a  good  plea  before  the  auditors  for  the  factor, 
that  he  was  robbed,  as  appears  by  the  books  in  12  E.  III.  Accompt, 
111,  41  E.  III.  3,  and  9  E.  IV.  40.  For  if  a  factor  (although  he  has 
wages  and  salary)  does  all  that  which  he  by  his  industry-  can  do,  he 
shall  be  discharged,  and  he  takes  nothing  upon  him,  but  his  duty  is  as 
a  servant  to  merchandise  the  best  that  he  can,  and  a  servant  is  bound 
to  perform  the  command  of  his  master :  but  a  ferryman,  common 
innkeeper,  or  carrier,  who  takes  hire,  ought  to  keep  the  goods  in  their 
custod}'  safely,  and  shall  not  be  discharged  if  they  are  stolen  by 
thieves,  vide  22  Ass.  41  Br.  Action  sur  le  Case,  78.  And  the  Court 
held  tlie  replication  idle  and  vain,  for  non  refert  by  whom  the  defend- 
ant was  robbed,  vide  33  H.  VI.  31a.  b.  If  traitors  break  a  prison,  it 
shall  not  discharge  the  gaoler ;  otherwise  of  the  King's  enemies  of 
another  kingdom  ;  for  in  the  one  case  he  may  have  his  remedy  and 
recompense,  and  in  the  other  not.  Nota  reader,  it  is  good  policy  for 
him  who  takes  any  goods  to  keep,  to  take  them  in  a  special  manner, 
scil.  to  keep  them  as  he  keeps  his  own  goods,  or  to  keep  them  the  best 
he  can  at  the  peril  of  the  party  ;  or  if  the}-  happen  to  be  stolen  or 
purloined,  that  he  shall  not  answer  for  them  ;  for  he  who  accepteth 
them,  ought  to  take  them  in  such  or  the  like  manner,  or  otherwise 
he  may  be  charged  by  his  general  acceptance.  So  if  goods  are  de- 
livered to  one  to  be  delivered  over,  it  is  good  policy'  to  provide  for 
himself  in  such  special  manner,  for  doubt  of  being  charged  upon  his 
general  acceptance,  which  implies  that  he  takes  upon  him  to  do  it. 


MORSE  V.  SLUE. 

King's  Bench,  1671-72. 

[2  Keh.  866,  3  Keh.  72, 112, 135 :  1  Vent.  190,  238 :  T.  Raijm.  220  :  2  Lev.  69  :  1  Mod.  85.]i 

An  action  upon  the  case  was  brought  b}'  the  Plaintiff  against  the 
Defendant ;  and  he  declared.  That  whereas,  according  to  the  law  and 
custom  of  England,  masters  and  governors  of  ships  wliich  go  from 
London  beyond  sea  and  take  upon  them  to  carry  goods  beyond  sea,  are 
bound  to  keep  safelj-  day  and  night  the  same  goods,  without  loss  or 
substraction,  ita  quod  pro  clefectu  of  them,  they  ma}'  not  come  to  any 
damage  ;  and  whereas  the  15  of  Mav  last,  the  defendant  was  master  of  a 
certain  ship  called  the  William  ((/id  J^o/in,  then  riding  at  the  Port  of 
London,  and  the  plaintiff  had  caused  to  be  laden  on  board  her  three 
trunks,  and  therein  400  pair  of  silk  stockings  and  174  pounds  of  silk, 

1  The  declaration  and  the  special  verdict  are  taken  from  the  report  by  Ventris  j  the 
rest  of  the  case  is  as  reported  by  Keble.  —  Ed. 


MORSE    V.   SLUE.  13 

by  him  to  be  transported  for  a  reasonable  reward  of  freight  to  be  paid, 
and  he  then  and  there  did  receive  them,  and  ought  to  have  transported 
them,  etc.,  but  he  did  so  negligently  keep  them,  that  in  default  of  sutli- 
cientcare  and  custody  of  him  and  his  servants,  17  May,  the  same  were 
totally  lost  out  of  the  said  ship.^ 

Upon  Not  guilty  pleaded,  a  special  verdict  was  found,  viz. : 

That  the  ship  lay  in  the  River  of  Thames,  in  the  Port  of  London,  in 
the  Parish  of  Stepney,  in  the  County  of  Middlesex,  prout,  etc.  That 
the  goods  were  delivered  by  the  plaintiff  on  board  the  ship,  prout^  etc., 
to  be  transported  to  Cadiz  in  Spain.  That  the  goods  being  on  board, 
there  were  a  sufficient  number  of  men  for  to  look  after  and  attend  her,  left 
in  her.  That  in  the  night  came  eleven  persons  on  pretence  of  pressing 
of  seamen  for  the  King's  service,  and  by  force  seized  on  these  men 
(which  were  four  or  five,  found  to  be  sufficient  as  before)  and  took  the 
goods.  That  the  master  was  to  have  wages  from  the  owners,  and  the 
mariners  from  the  master.    That  she  was  of  the  burthen  of  150  tons,  etc. 

So  the  question  was,  upon  a  trial  at  bar,  whether  the  master  were 
chargeable  upon  this  matter. 

Holt^  for  the  Plaintiff.  The  master  receives  these  goods  generally  to 
keep,  as  4  Co.  83,  Southcot's  Case  ;  Co.  Lit.  89  ;  and  only  guardian 
in  socage  who  hath  the  custody  by  law,  and  factor  who  is  servant  at  the 
master's  dispose,  and  so  cannot  take  care,  are  exempt. 

2d.  The  master  is  to  have  a  reward  for  his  keeping  and  therefore 
the  proper  person  against  whom  the  action  should  be  is  he.  This  is 
the  reason  (2  Cro.  188,  Jell}'  and  Clerke)  of  a  Carrier,  hoj'man,  and 
innkeeper:  thus  Moore,  876,  pi.  1229,  and  in  Hob.  18,  Rich  and  Need- 
ham's  Case.  And  though  the  master  hath  his  salary  from  the  owners, 
yet  the  contract  for  freight  is  made  by  the  master  in  his  own  name  with 
the  merchant,  and  the  master  is  to  do  that  which  is  consequence  of  it, 
to  keep  the  goods.  And  were  he  a  servant  (Doctor  &  Student,  137), 
if  he  contract  in  his  own  name  (Dyer,  230,  2  Cro.  250,  Yelv.  137,  pi. 
194)  he  is  the  principal  debtor.  Also  in  the  Civil  Law  exercitor  navis 
takes  no  care  of  freight,  therefore  this  master  is  but  a  servant,  and  the 
action  against  him  only  exercitorial  because  the  owner  took  all  the  care 
to  lade  and  freight  wine  ;  as  Plowd.  827.  But  the  exercitor  now  is  per 
aversionem  the  master  who  takes  care  of  all. 

3d.  The  master  of  the  ship  hath  a  remedy  over  against  the  w^rong- 
doers,  as  Lit.  Co.  54,  on  permissive  waste.  So  gaoler  (33  Hen.  VI.  1) 
on  traitors  breaking  prison.  Also  the  master  he  may  have  trespass  or 
an  appeal  of  robbery,  and  on  a  fresh  suit  (Keil.  70)  he  shall  have  resti- 
tution, and  the  damages  recovered  by  the  master  shall  bar  the  owners ; 
so  Haydon  and  Smyth,  13  Co.  69.  Also  the  mischief  is  great  if  no 
action  lie,  by  reason  of  the  great  trust  merchants  put  in  the  master,  and 
and  therefore  he  need  not  prove  any  particular  defaults  (as  de  lege  Xctu- 
tica,  Plowd.  3,  15,   29,  and  in  Antonius  Fogassa,   822),  though  the 

1  There  appears  to  have  been  a  second  count  in  case  as  against  a  mere  bailee,  for 
negligence  in  not  guarding  the  goods.     2  Keb.  866. — Ed. 


14  MOESE   v.    SLUE. 

injuries  happen  without  the  master's  default,  ifniles  fatale  divum 
accideret,  Lex  Mercatoria,  103.  Also  the  bills  of  lading  show  this, 
"  that  the  goods  well  received  are  to  be  redelivered,  the  dangers  of  the 
sea  only  excepted,"  which  cannot  be  foreseen  uor  avoided  ;  and  this 
differs  from  piracy,  which  (as  Locceuius,  121,  and  3  Inst.  112)  is  a 
danger  at  sea  or  common  enemies  (and  Loccenius  de  jure  maritimo,  140, 
Strecka  de  mercatura,  448).  Also  here  is  a  neglect  in  the  master  hav- 
ing no  greater  guard  than  four  ;  which  is  found  to  be'the  usual  number, 
but  not  by  time  out  of  mind,  or  by  custom  or  prescription.  Also  the 
men  that  robbed  were  permitted  to  enter,  but  it  was  found  the^-  pretended 
to  be  press  masters. 

Winnington,  for  the  Defendant.  1st.  That  here  is  no  such  neglect 
as  to  ground  an  action  upon  ;  the  declaration  being  on  the  custom  of 
England,  as  against  innkeeper,  carrier,  etc.  (Register,  105,  and  F.  N.  B. 
94  b),  yet  in  neither  is  there  any  precedent  against  master  of  the  ship 
nor  other,  but  what  is  grounded  on  wilful  or  legal  neglect.  And  this 
nonfeasance  and  want  of  sufficient  numbers  cannot  be  a  neglect  in  law 
(as  8  Co.  33,  Calye's  Case,  4,  resolved;  22  Hen.  VI.  21  and  38;  2 
Hen.  IV.  7  b  ;  Dyer,  158  and  266,  Spencer's  Case  ;  and  Hil.  32  Eliz.  1, 
Roll.  3  and  Moore,  462,  pi.  650,  Woodlif's  Case)  ;  for  he  that  loseth 
these  goods  is  not  to  pa}-  the  defendant  anything,  but  to  the  owners  of 
the  ship,  whose  servant  the  master  is  j)ro  hac  vice ;  and  in  Hob.  17  a 
reward  is  expressly  averred  to  be  given  to  the  hoyman,  and  the  master's 
possession  is  the  owners'.  Also  here  is  a  custom  found  that  four  was 
the  usual  number,  which  in  v^erdict  is  sufficient  without  saving  time  out 
of  mind  (Lit.  Co.  182).  Also  (Wellwood's  Abridgment)  the  duty  of  the 
master  of  the  ship  is  only  to  look  to  the  goods,  but  not  to  answer  for  them. 

2d.  Supposing  a  neglect  on  which  the  merchant  should  have  remedy, 
it  lyeth  not  against  the  master  but  against  the  part  owners,  here  being 
no  charter- part}'  found  ;  whereby  if  the  master  be  partner  he  is  liable, 
but  else  the  master  is  a  bare  servant,  and  sueth  owners  for  salary.  .  .  . 

3d.  Here  is  not  guilty  found  as  to  the  point  of  neglect  on  which  the 
later  part  of  the  declaration  is  as  a  special  action  upon  the  Case  ;  but 
it's  left  on  the  common  custom,  as  Carrier,  etc.     Sed  adjournatur. 

Tuesday,  Jan.  28.  Wallop,  for  the  Plaintiff.  At  the  common  law 
on  the  general  bailment  it 's  against  the  defendant.  2.  As  a  public 
carrier.  And  3.  as  a  master  of  a  ship.  As  to  the  first  is  inferred  that 
de  custodia  tenetxir  strictly  (4  Co.  83,  Southcot's  Case  ;  1  Inst.  89)  ; 
and  the  like  of  a  simple  depositorixis  (in  Inst.,  lib.  3,  cap.  ;  so  Bract. 
99,  and  Grotius,  lib.  2,  cap.  10,  §  13,  de  Jure  Belli)  whose  office  is 
merel}'  gratuitous. 

2d.  As  of  public  profession,  as  he  hath  privilege  so  he  hath  trust  and 
obligation,  which  is  the  reason  the  Civil  Law  hold  them  strictlier  to  it 
(Pecchius,  36),  as  an  innkeeper  ((7a?/f>o;?e^s  Nautaeet  Tahularii ;  Hob. 
18  ;  Cro.  Jac.  330,  Rich  v.  Kneeland).  And  that  the  defendant  is  but 
a  servant  doth  not  appear  by  his  receiving  salary.    For 

3d.  he  is  master  of  a  ship,  and  a  judicial  officer  of  universal  note 
(Loccenius,  lib.  2,  cap.     )  ;  he  hath  care  of  the  whole  ship,  and  by 


MORSE   V.   SLUE.  15 

the  Laws  of  Oleron  may  pawn  the  ship  (as  Ilob,  2,  Bridgman's  Case), 
which  is  more  than  an  ordinary  servant.  Also  he  transacts  all  without 
notice  of  the  owners,  especially  where  there  is  no  charter-partj'  as  here 
(Pecchiiis,  126) ;  ad  macjistrum  respiciuat  contrahentes.  That  against 
tlie  owners  is  dativa  actio,  not  ex  contractu  unius  (see  Pecchius,  132)  ; 
the  owners  are  but  as  fidejussors,  and  the  master  is  tlie  principal  {Lex 
3Ie)'catoria,  14,  and  Well  wood,  87,  Abridginent  of  Sea  Laics).  He 
hath  his  office  bj'  public  law,  not  by  a  private  command  (2  Hen.V.  cap.  6). 
A  sworn  officer,  and  ma}'  impose  pecuniar}^  or  corporal  punishments  on 
mariners,  as  steward  of  a  manor ;  the  master  acts  officii  praecej^to,  a 
procurator,  but  as  delegate  the  merchant  ma^-  charge  the  owners  or 
(1  Inst.  385)  the  master  at  election  or  the  owners  on  insufficiency  of 
the  master.  Quoad  liahitum  et  proprietatem  the  ship  belongs  to 
owners,  but  quoad  exercitimn  it  belongs  to  tlie  master,  as  cure  is 
divided  between  parson  and  vicar ;  and  the  salary  is  but  as  a  fee  of  an 
officer  (2  Inst.  463),  though  (1  Inst.  233)  removable  at  will.  2.  By  the 
law  of  merchants  the  defendant  ought  to  be  charged.  The  51  Rhodian 
Laws  in  Morison  do  include  exercitores  as  well  as  the  master;  them 
actione  exercitoria,  him  actione  civili.  The  master  may  by  his  neglect 
bind  himself  and  the  owner  to  the  merchant,  but  not  contrary.  The 
second  and  third  law  of  Oleron  obliges  the  master  to  answer  for  neglects 
(Bronchurst  de  reg.  juris,  58  ;  1  Cro.  353)  of  crassa  or  lata  culpja  or  de 
culpa  levissima,  and  the  having  the  usual  number  is  not  diligentia 
exactissima  (Bronch.  61). 

Molloy,  for  the  Defendant.  Freight  was  by  Cape  Merchant  generally, 
he  that  hired  a  dead  vessel :  there  the  owner  ran  no  risk.  2.  A  Cape 
Merchant  special,  which  is  now  usual  to  take  in  by  tonnage.  3.  There 
was  an  under-freighter,  which  is  the  case  in  question  with  bills  of  lading 
(Van  Luen's  Digest).  And  in  both  those  cases  the  owners  are  answer- 
able. 4.  On  Cotton,  63,  there  were  exercitors  that  of  themselves 
undertook.  All  the  first  and  last  sort  are  obsolete,  but  the  second  and 
third  now  used.  And  the  master  is  chosen  but  as  a  servant  for  his 
skill,  and  is  answerable  for  his  neglects  only  ;  and  if  he  be  in  no  fault 
he  is  discharged.  And  the  merchant  shall  not  be  in  better  condition 
against  the  master  than  the  owners  have  for  the  ship's  furniture  (9 
Edw.  IV.  40  ;  Lane,  68  ;  2  Cro.  266).  Also  the  Statute  32  Hen.  VIII. 
cap,  4,  that  gives  the  Admiral  concurrent  jurisdiction  herein,  shows  the 
delivery  special  in  this  case,  therefore  called  merchant  adventurers,  and 
the  master  cannot  be  presumed  to  keep  the  merchant's  goods  safer  than 
his  own  (2  Bulst.  209;  Keil.  77;  Doctor  &  Student,  38).  Also  the 
master  hath  no  benefit  by  this  delivery  (4  Co.  48  ;  Dyer,  239)  ;  there- 
fore he  that  hath  the  benefit  shall  answer,  which  is  the  owner's  (18 
Hen.  VI  25  in  4  Inst.  146  ;  Digest,  de  exercitoria  actione,  L.  1,  §  3  ; 
Registre,  100;  Worrall  and  Bradshaw's  Case,  9  Jac.\).     There  is  elec- 

1  Reported  in  Harvard  MS.  Reports,  9, Inc. ;  ibid.  2-22  Jac,  as  follows  :  "  Between 
Worrall  and  Bradsliaw  it  was  held,  that  where  goods  are  delivered  to  the  servant  of 
a  carrier  to  carry  them,  etc.,  action  of  trover  does  not  lie  against  the  carrier,  but 
special  action  on  the  case."  —  Ed. 


16  MORSE   V.    SLUE. 

tion  by  the  marine  law  on  wilful  neglect,  not  else  ;  also  the  ship  is  instead 
of  the  owners  (1  Roll.  530)  and  therefore  is  answerable  (2  Rich.  III.  2  ; 
Stat.  54).  Taking  alters  the  property-  spoiled  by  alien  (F.  N.  B.  114, 
Regist.  129),  for  which  letters  of  mart  are  given.  Also  piracy  (13  Jac. 
Bellingham's  Case)  though  illegal  shall  not  make  the  master  answerable, 
but  for  spoliatio  in  navi  he  shall  answer  (as  Ccvoim^  Digest,  de  famosis 
libellis  ;  and  by  the  Laws  of  Oleron,  cap.  5  ;  Clyrak's  Coment.  in  French, 
in  Lincoln's  Inn  Librar}- ;  Tr.  24  Ed.  III.  tit.  Bristol,  no.  45,  in  Pruyn's 
Records).  The  master  is  not  answerable  for  goods  stolen  out  of  the 
ship  moored  at  anchor  in  pool  where  there  is  a  sufficient  number  of  men 
(Digest,  33  ;  1  Roll.  560,  Ferns  and  Smyth),  but  only  for  his  own 
faults. 

2d.  This  is  not  like  a  common  hoyman  with  small  vessels  [which] 
are  common  carriers  and  so  accounted  (27  Ed.  III.  cap.  15)  ;  but  not 
ships  (so  Pasch.  13  Ed.  IV.  19,  and  1  Roll.  536).  There  is  the  like 
difference,  Hill.  19  Car.  II.  in  Exchequer  in  Quo  Warranto  against  the 
City  of  London  for  water  bailage  ;  it  was  resolved  the  duty  was  not 
due  of  great  ships  that  come  from  foreign  parts,  but  onlj^  of  smaller 
vessels.  And  these  have  remedy  against  the  count}'  as  other  travellers 
(22  Ass.  ;  Davis,  in  the  case  of  the  Bank)  ;  but  not  the  others,  being 
(4  Inst.  147)  floating  castles,  and  none  can  enter  into  them  for  their 
safet}',  nor  can  the  hundred  take  notice  of  their  robberj-  (7  Co.  7,  San- 
dal's Case)  nor  assist  with  naval  provisions.  And  this  will  discourage 
navigation  ;  and  is  without  precedent  or  practice,  but  the  master  alwaj-s 
discharged. 

The  Court  [per  Hale,  C.  J.]  agreed  the  master  shall  not  answer  for 
inevitable  damage,  nor  the  ownei-s  neither  without  special  undertaking : 
when  it 's  vis  cui  resisti  nan  potest.  But  for  robber}'  the  usual  number 
to  guide  the  ship  must  be  increased  as  the  charge  increaseth.  And  the 
master  is  not  a  mere  servant ;  for  freight  is  the  mother  of  wages,  and 
one  lost  with  the  other,  therefore  this  is  money  paid  by  the  merchant. 

And  the  Court  inclined  strongly  for  the  plaintiff. 

Saturday,  Feb.  8. 

Per  totam  Curiam.  By  the  civil  law  and  lex  mercatoria .,  the  master 
is  liable  so  long  as  he  is  within  the  King's  protection  :  And  by  our  law, 
being  within  the  body  of  the  county,  wages  beginning  here.  And  when 
he  took  in  the  goods  he  might  have  cautioned  against  them,  not  to  take 
them  in  till  farther  time ;  as  carrier  that  is  not  told  what  is  in  a  box 
taken  in,  is  liable  for  money,  etc.,  unless  he  cautions  against  money. 
Also  this  differs  not  from  a  hoyman.  For  the  master  is  an  officer  and 
not  an  ordinary  servant,  but  as  a  gaoler  who  is  chargeable  for  escapes, 
though  respondeat  superior  for  his  default ;  but  a  turnkey  is  but  a  ser- 
vant, not  liable.  Also  the  owner  receives  freight  in  respect  of  this  care, 
and  whether  he  receives  it  from  them  or  the  merchant  is  not  material. 
Also  though  the  guard  be  sufficient  for  the  ship,  yet  (33  Hen.  VI.  l)he 
must  have  sufficient  guard  for  the  goods  ;  nor  is  this  excuse  of  the 
carrier  unless  in  case  of  common  enemies. 

Judgment  for  the  Plaintif". 


COGGS   V.   BERNARD,  17 


COGGS   V.  BERNARD. 
Queen's  Bench,  1703. 

[2  Lord  Rai/mond,  909.] 

In  an  action  upon  the  case  the  plaintiff  declared,  quod  cum  Bernard 
the  defendant,  the  lOth  of  November,  13  Will.  3,  at,  &c.,  assump- 
sisset,  salvo  et  secure  elevare,  Amjlice  to  take  up,  several  hogsheads 
of  brand}-  then  in  a  certain  cellar  in  D.,  et  salvo  et  secure  deponere, 
Anglice  to  la}-  them  down  again,  in  a  certain  other  cellar  in  Water 
Lane,  the  said  defendant  and  his  servants  and  agents  tam  negligenter 
et  iniprovide  put  them  down  again  into  the  said  other  cellar,  quod  per 
defectum  cune  ipsius  the  defendant,  his  servants  and  agents,  one  of 
the  casks  was  staved,  and  a  great  quantity  of  brandy,  viz.  so  many 
gallons  of  brandy,  was  spilt.  After  not  guilty  pleaded,  and  a  verdict 
for  the  plaintiff,  there  was  a  motion  in  arrest  of  judgment,  for  that  it 
was  not  alleged  in  the  declaration  that  the  defendant  was  a  common 
porter,  nor  averred  that  he  had  anything  for  his  pains.  And  the  case 
being  thought  to  be  a  case  of  great  consequence,  it  was  this  day  argued 
seriatim  by  the  whole  conrt. 

Gould,  Justice.  I  think  this  is  a  good  declaration.  The  objection 
that  has  been  made  is,  because  there  is  not  any  consideration  laid. 
But  I  think  it  is  good  either  way,  and  that  any  man  that  undertakes  to 
carry  goods  is  liable  to  an  action,  be  he  a  common  carrier  or  whatever 
he  is,  if  through  his  neglect  they  are  lost  or  come  to  any  damage ;  and 
if  a  premium  be  laid  to  be  given,  then  it  is  without  question  so.  The 
reason  of  the  action  is,  the  particular  trust  reposed  in  the  defendant,  to 
which  he  has  concurred  by  his  assumption,  and  in  the  executing  which 
he  has  miscarried  b}-  his  neglect.  But  if  a  man  undertakes  to  build  a 
house,  without  anything  to  be  had  for  his  pains,  an  action  will  not  lie 
for  non-performance,  because  it  is  nudum  pactum .  So  is  the  3  II.  6, 
36.  So  if  goods  are  deposited  with  a  friend,  and  are  stolen  from  him, 
no  action  will  lie.  29  Ass.  28.  But  there  will  be  a  difference  in  that 
case  upon  the  evidence,  how  the  matter  appears  ;  if  they  were  stolen  by 
reason  of  a  gross  neglect  in  the  liailee,  the  trust  will  not  save  him  from 
an  action,  otherwise  if  there  be  no  gross  neglect.  So  is  Doct.  &  Stud. 
129  upon  that  difference.  The  same  difference  is  where  he  comes  to 
goods  by  finding.  Doct.  &  Stud,  iibi  snpra^  Ow.  141.  But  if  a  man 
takes  upon  him  expressly  to  do  such  a  fact  safely  and  securel}-,  if  the 
thing  comes  to  any  damage  by  his  miscarriage,  an  action  will  lie  against 
him.  If  it  be  only  a  general  bailment,  the  bailee  will  not  be  chargeable 
without  a  gross  neglect.  So  is  Keilw.  160,  2  11.  7,  11,  22  Ass.  41, 
1  R.  10.  Bro.  Action  sur  le  case,  78.  Southcote's  Case  is  a  hard 
case  indeed,  to  obhge  all  men,  that  take  goods  to  keep,  to  a  special 
acceptance  that  they  will  keep  them  as  safe  as  the}'  would  do  their  own, 
which  is  a  thing  no  man  living  that  is  not  a  lawyer  could  think  of;  and 
indeed  it  appears  by  tlie  report  of  that  case  in  Cro.  El.  815,  that  it  was 
adjudged  by  two  judges  only,  viz.  Gawdy  and  Clench.    But  in  1  Ventr. 

2 


18  COGGS   V.    BERNAED. 

121  there  is  a  breach  assigned  upon  a  bond  conditioned  to  give  a  true 
account,  that  the  defendant  had  not  accounted  for  £30,  the  defendant 
showed  that  he  locked  the  money  up  in  his  master's  warehouse,  and  it 
was  stole  from  thence,  and  that  was  held  to  be  a  good  account.  But 
when  a  man  undertakes  speciall}'  to  do  such  a  thing,  it  is  not  hard  to 
charge  him  for  his  neglect,  because  he  had  the  goods  committed  to  his 
custody  upon  those  terms. 

PowYS  agreed  upon  the  neglect. 

Powell.  The  doubt  is,  because  it  is  not  mentioned  in  the  declaration 
that  the  defendant  had  anything  for  his  pains,  nor  that  he  was  a  com- 
mon porter,  which  of  itself  imports  a  hire,  and  that  he  is  to  be  paid  for 
his  pains.  So  that  the  question  is,  whether  an  action  will  lie  against  a 
man  for  doing  the  office  of  a  friend,  when  there  is  not  any  particular 
neglect  shown.  And  I  hold  an  action  will  lie,  as  this  case  is.  And  in 
order  to  make  it  out,  I  shall  first  show  that  there  are  great  authorities 
for  me,  and  none  against  me ;  and  then,  secondh',  I  shall  show  the  rea- 
son and  gist  of  this  action  ;  and  then,  thirdh',  I  shall  consider  South- 
cote's  Case. 

1.  Those  authorities  in  the  Eegister,  110,  a,  b,  of  the  pipe  of  wine, 
and  the  cure  of  the  horse,  are  in  point,  and  there  can  be  no  answer  given 
them  but  that  they  are  writs  which  are  framed  short.  But  a  writ  upon 
the  case  must  mention  everything  that  is  material  in  the  case,  and  noth- 
ing is  to  be  added  to  it  in  the  count  but  the  time  and  such  other  cir- 
cumstances. But  even  that  objection  is  answered  by  East.  Entr.  13,  e., 
where  there  is  a  declaration  so  general.  The  year  books  are  full  in 
this  point.  43  Ed.  3,  33,  a.,  there  is  no  particular  act  showed.  There, 
indeed,  the  weight  is  laid  more  upon  the  neglect  than  the  contract. 
But  in  48  Ed.  3,  6,  and  19  H.  6,  49,  there  the  action  is  held  to  lie 
upon  the  undertaking,  and  that  without  that  it  would  not  lie;  and 
therefore  the  undertaking  is  held  to  be  the  matter  traversable,  and  a 
writ  is  quashed  for  want  of  laying  a  place  of  the  undertaking.  2  H.  7, 
11,  7  H.  4,  14,  these  cases  are  all  in  point,  and  the  action  adjudged  to 
lie  upon  the  undertaking. 

2.  Now,  to  give  the  reason  of  these  cases,  the  gist  of  these  actions 
is  the  undertaking.  The  party's  special  assumpsit  and  undertaking 
obliges  him  so  to  do  the  thing,  that  the  bailor  come  to  no  damage  b}' 
his  neglect.  And  the  bailee  in  this  case  shall  answer  accidents,  as  if 
the  goods  ai-e  stolen  ;  but  not  such  accidents  and  casualties  as  happen 
by  the  act  of  God,  as  fire,  tempest,  &c.  So  is  it  1  Jones,  179,  Palm. 
548.  For  the  bailee  is  not  bound  upon  any  undertaking  against  the  act 
of  God.  Justice  Jones  in  that  case  puts  the  case  of  the  22  Ass.,  where 
the  ferryman  overladed  the  boat.  That  is  no  authority,  I  confess,  in 
that  case,  for  the  action  there  is  founded  upon  the  ferryman's  act,  viz. 
the  overlading  the  boat.  But  it  would  not  have  lain,  says  he,  without 
that  act ;  because  the  ferryman,  notwithstanding  his  undertaking,  was 
not  bound  to  answer  for  storms.  But  that  act  would  charge  him  with- 
out any  undertaking,  because  it  was  his  own  wrong  to  overlade  the  boat. 
But  bailees  ^re  chargeable  in  case  of  other  accidents,  because  they  have 


COGGS    v.    BERNARD.  19 

a  remed}-  against  the  wrong  doers  ;  as  in  case  the  goods  are  stolen  from 
him,  an  a[)peal  of  robbery  vvill  lie,  wherein  he  may  recover  the  goods, 
which  cannot  be  had  against  enemies,  in  case  they  are  plundered  b}- 
them  ;  and  therefore  in  that  case  he  shall  not  be  answerable.  Ijtit  it 
is  objected,  that  here  is  no  consideration  to  ground  the  action  upon. 
But  as  to  this,  the  difference  is  between  being  obliged  to  do  the  thing, 
and  answering  for  things  which  he  lias  taken  into  his  custody  upon  such 
an  undertaking.  An  action,  indeed,  will  not  lie  for  not  doing  tiie  thing, 
for  want  of  a  sufficient  consideration  ;  but  yet  if  the  bailee  will  take  the 
goods  into  his  custody,  he  shall  be  answerable  for  them  ;  for  the  taking 
the  goods  into  his  custody*  is  his  own  act.  And  this  action  is  founded 
upon  the  warrant}',  upon  which  I  have  been  contented  to  trust  3'ou  with 
the  goods,  which  witliout  such  a  warranty  I  would  not  have  done.  And 
a  man  ma}'  warrant  a  thing  without  an}'  consideration.  And  therefore, 
when  I  have  reposed  a  trust  in  you,  upon  your  undertaking,  if  I  suffer 
when  I  have  so  relied  upon  you,  I  shall  have  my  action.  Like  the  case 
of  the  Countess  of  Salop.  An  action  will  not  lie  against  a  tenant  at 
will  generally,  if  the  house  be  burnt  down.  But  if  the  action  had  been 
founded  upon  a  special  undertaking,  as  that  in  consideration  the  lessor 
would  let  him  live  in  the  house,  he  promised  to  deliver  up  the  house 
to  him  again  in  as  good  repair  as  it  was  then,  the  action  would  have 
lain  upon  that  special  undertaking.  But  there  the  action  was  laid 
generally. 

3.  Southcote's  Case  is  a  strong  authority,  and  the  reason  of  it  comes 
home  to  this,  because  the  general  bailment  is  there  taken  to  be  an 
undertaking  to  deliver  the  goods  at  all  events,  and  so  the  judgment  is 
founded  upon  the  undertaking.  But  I  cannot  think  that  a  general 
bailment  is  an  undertaking  to  keep  the  goods  safely  at  all  events. 
That  is  hard.  Coke  reports  the  case  upon  that  reason,  but  makes  a 
difference,  where  a  man  undertakes  specially  to  keep  goods  as  he  will 
keep  his  own.  Let  us  consider  the  reason  of  the  case.  For  nothing  is 
law  that  is  not  reason.  Upon  consideration  of  the  authorities  there 
cited,  I  find  no  such  difference.  Li  9  Ed.  4,  40,  b,  there  is  such  an 
opinion  by  Danby.  The  case  in  3  H.  7,  4,  was  of  a  special  bailment, 
so  that  that  case  cannot  go  very  far  in  the  matter.  6  H.  7,  12,  there 
is  such  an  opinion,  by  the  by.  And  this  is  all  the  foundation  of 
Southcote's  Case.  But  there  are  cases  there  cited  whieli  are  stronger 
against  it,  as  10  H.  7,  26,  29  Ass.  28,  the  case  of  a  pawn.  INIy  lord 
Coke  would  distinguish  the  case  of  a  pawn  from  a  bailment,  because 
the  pawnee  has  a  special  property  in  the  pawn  ;  but  tiiat  will  make  no 
difference,  because  he  has  a  special  property  in  the  thing  bailed  to  him 
to  keep.  8  Ed.  2,  Fitzii.  Detinue,  59,  the  case  of  goods  bailed  to  a  man, 
locked  up  in  a  chest,  and  stolen  ;  and  for  the  reason  of  that  case,  sure  it 
would  be  hard  that  a  man  that  takes  goods  into  his  custody  to  keep  for 
a  friend,  purely  out  of  kindness  to  his  friend,  should  be  chargeable  at  all 
events.  But  then  it  is  answered  to  that,  that  the  bailee  might  take  them 
specially.  There  are  many  lawyers  don't  know  that  difference,  or  how- 
ever it  may  be  with  them,  half  mankind  never  heard  of  it.     So  for  these 


20  COGGS    V.    BEKNAED. 

reasons,  I  think  a  general  bailment  is  not,  nor  cannot  be  taken  to  be,  a 
special  undertaking  to  keep  the  goods  bailed  safely  against  all  events. 
But  if  a  man  does  undertake  specially  to  keep  goods  safely,  that  is  a 
warrant}',  and  will  oblige  the  bailee  to  keep  them  safely  against  perils, 
where  he  has  his  remedy  over,  but  not  against  such  where  he  has  no 
remedy  over. 

Holt,  Chief  Justice.  The  case  is  shortly  this.  This  defendant  under- 
takes to  remove  goods  from  one  cellar  to  another,  and  tliere  lay  them 
down  safel}',  and  he  managed  them  so  negligently,  that  for  want  of  care 
in  him  some  of  the  goods  were  spoiled.  Upon  not  guilty  pleaded,  there 
has  been  a  verdict  for  the  plaintiff,  and  that  upon  full  evidence,  the 
cause  being  tried  before  me  at  Guildhall.  There  has  been  a  motion  in  ' 
arrest  of  judgment,  that  the  declaration  is  insufficient,  because  the  de- 
fendant is  neither  laid  to  be  a  common  porter,  nor  that  he  is  to  have 
any  reward  for  his  labor.  So  that  the  defendant  is  not  chargeable  by 
his  trade,  and  a  private  person  cannot  be  charged  in  an  action  without 
a  reward. 

I  have  had  a  great  consideration  of  this  case,  and  because  some  of 
the  books  make  the  action  lie  upon  the  reward,  and  some  upon  the 
promise,  at  first  I  made  a  great  question,  whether  this  declaration  was 
good.  But  upon  consideration,  as  this  declaration  is,  I  think  the  action 
will  well  lie.  In  order  to  show  the  grounds  upon  which  a  man  shall  be 
charged  with  goods  put  into  his  custody,  1  must  show  tlie  several  sorts 
of  baihnents.  And  there  are  six  sorts  of  bailments.  The  first  sort  of 
bailment  is,  a  bare  naked  bailment  of  goods,  delivered  b}'  one  man  to 
anotlier  to  keep  for  the  use  of  the  bailor  ;  and  this  I  call  a  dejyositum, 
and  it  is  that  sort  of  bailment  which  is  mentioned  in  Southcote's  Case. 
The  second  sort  is,  when  goods  or  chattels  that  are  useful  are  lent  to  a 
friend  gratis,  to  be  used  by  him ;  and  tliis  is  called  commoclatum,  be- 
cause the  thing  is  to  be  restored  in  specie.  The  third  sort  is,  when 
goods  are  left  with  the  bailee  to  be  used  by  him  for  hire  ;  this  is  called 
locatio  et  conduction  and  the  lender  is  called  locator,  and  the  borrower 
coyiductoi:  The  fourth  sort  is,  when  goods  or  chattels  are  delivered  to 
another  as  a  pawn,  to  be  a  security'  to  him  for  mone}'  borrowed  of  him 
by  the  bailor ;  and  this  is  called  in  Latin  vadium ^  and  in  English  a 
pawn  or  a  pledge.  The  fifth  sort  is,  when  goods  or  chattels  are  deliv- 
ered to  be  carried,  or  something  is  to  be  done  about  them  for  a  reward 
to  be  paid  b}'  the  person  who  delivers  them  to  the  bailee,  who  is  to  do 
the  thing  about  them.  The  sixth  sort  is,  when  there  is  a  delivery  of 
goods  or  chattels  to  somebody,  who  is  to  carry  them,  or  do  something 
about  them  gratis,  without  any  reward  for  such  his  work  or  carriage, 
which  is  this  present  case.  I  mention  these  things,  not  so  much  that 
they  are  all  of  tiiem  so  necessai-y  in  order  to  maintain  the  proposition 
which  is  to  be  proved,  as  to  clear  the  reason  of  the  obligation  which 
is  upon  persons  in  cases  of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custod}'  to  keep 
for  the  use  of  the  bailor,  I  shall  consider  for  what  things  such  a  bailee 
is  answerable.     He  is  not  answerable  if  the^'  are  stole  without  any  fault 


COGGS  V.   BERNAKD. 


21 


in  him,  neither  will  a  common  neglect  make  him  chargeable,  but  he 
must  be  guilty  of  some  gross  neglect.  There  is,  I  confess,  a  great 
authority  against  me,  where  it  is  held  that  a  general  delivery  will 
chaige  the  bailee  to  answer  for  the  goods  if  they  are  stolen,  unless  the 
goods  are  speciall}'  accepted,  to  keep  them  only  as  you  will  keep  your 
own.  But  my  lord  Coke  has  improved  the  case  in  his  report  of  it,  for 
he  will  have  it  that  there  is  no  difference  between  a  special  acceptance 
to  keep  safely,  and  an  acceptance  generally  to  keep.  But  there  is  no 
reason  nor  justice  in  such  a  case  of  a  general  bailment,  and  where  the 
bailee  is  not  to  have  any  reward,  but  keeps  the  goods  merely  for  the 
use  of  the  bailor,  to  charge  him  without  some  default  in  him.  For  if  he 
keeps  the  goods  in  such  a  case  with  an  ordinary  care,  he  has  performed 
the  trust  reposed  in  him.  But  acc^ording  to  this  doctrine  the  bailee 
must  answer  for  the  wrongs  of  other  people,  which  he  is  not,  nor  cannot 
be,  sufficiently  armed  against.  If  the  law  be  so,  there  must  be  some 
just  and  honest  reason  for  it,  or  else  some  universal  settled  rule  of  law, 
upon  which  it  is  grounded ;  and  therefore  it  is  incumbent  upon  them 
that  advance  this  doctrine,  to  show  an  undisturbed  rule  and  practice  of 
the  law  according  to  this  position.  But  to  show  that  the  tenor  of  the 
law  was  always  otherwise,  I  shall  give  a  history  of  the  authorities  in 
the  books  in  this  matter,  and  by  them  show  that  there  never  was  an}' 
such  resolution  given  before  Southcote's  Case.  The  29  Ass.  28  is  the 
first  case  in  the  books  upon  that  learning,  and  there  the  opinion  is,  that 
the  bailee  Is  not  chargeable  if  the  goods  are  stole.  As  for  8  Edvv.  2, 
Fitz.  Detinue,  59,  where  goods  were  locked  in  a  chest  and  left  with  the 
bailee,  and  the  owner  took  away  the  ke}',  and  the  goods  were  stolen, 
and  it  was  held  that  the  bailee  should  not  answer  for  the  goods.  That 
case,  they  sav,  differs,  because  the  bailor  did  not  trust  the  bailee  with 
them.  But  I  cannot  see  the  reason  of  that  difference,  nor  wh}'  the 
bailee  should  not  be  charged  with  goods  in  a  chest,  as  well  as  with 
goods  out  of  a  chest.  For  the  bailee  has  as  little  power  over  them 
when  they  are  out  of  a  chest,  as  to  any  benefit  he  might  have  by  them, 
as  when  the}'  are  in  a  chest ;  and  he  has  as  great  power  to  defend  them 
in  one  case  as  in  the  other.  The  case  of  9  Edw.  4,  40,  b,  was  but  a 
debate  at  bar.  For  Danby  was  but  a  counsel  then,  though  he  had 
been  Chief  Justice  in  the  beginning  of  Ed.  4,  yet  he  was  removed,  and 
restored  again  upon  the  restitution  of  Hen.  6,  as  appears  by  Dugdale's 
Chronica  Series.  So  that  what  he  said  cannot  be  taken  to  be  any 
authority,  for  he  spoke  only  for  his  client ;  and  Genney  for  his  client 
said  the  contrary.  The  case  in  3  Hen.  7,  4,  is  but  a  sudden  opinion, 
and  that  but  by  half  tlie  court ;  and  yet  that  is  the  only  ground  for  this 
opinion  of  my  lord  Coke,  which  besides  he  has  improved.  But  the 
practice  has  been  always  at  Guildhall  to  disallow  that  to  be  a  sufficient 
evidence  to  charge  the  bailee.  And  it  was  practised  so  before  my  time, 
all  Chief  Justice  Pemberton's  time,  and  ever  since,  against  the  opinion 
of  that  case.  When  I  read  Southcote's  Case  heretofore,  I  was  not  so 
discerning  as  my  brother  Powrs  tells  us  he  was,  to  disallow  that  case 
at  first,  and  came  not  to  be  of  this  opinion  till  I  had  well  considered 


22  COGGS   V.   BERNARD. 

and  digested  that  matter.  Though  I  must  confess  reason  is  strong 
against  the  case  to  charge  a  man  for  doing  such  a  friendly  act  for  his 
friend,  but  so  far  is  the  law  from  being  so  unreasonable,  that  such  a 
bailee  is  the  least  chargeable  for  neglect  of  anj-.  For  if  he  keeps  tlie 
goods  bailed  to  him  but  as  he  keeps  his  own,  thougli  he  keeps  his  own 
but  negligently,  3-et  he  is  not  chargeable  for  them,  for  the  keeping  them 
as  he  keeps  his  own  is  an  argument  of  his  honesty.  A  fortiori^  he  shall 
not  be  charged  where  they  are  stolen  without  any  neglect  in  him.  Agree- 
able to  this  is  Bracton,  lib.  3,  c.  2,  99,  b,  J.  S.,  apud  quem  res  depo- 
nitur,  re  obligatur,  et  de  ea  re,  quam  accepit,  restituenda  tenetur,  et 
etiam  ad  id,  si  quid  in  re  deposita  dolo  commiserit ;  culpa?  autem  nomine 
non  tenetur,  scilicet  desidite  vel  negligenti.ie,  quia  qui  negligenti  amico 
rem  custodiendam  tradit,  sibi  ipsi  et  proprioe  fatuitati  hoc  debet  impu- 
tare.  As  suppose  the  bailee  is  an  idle,  careless,  drunken  fellow,  and 
comes  home  drunk,  and  leaves  all  his  doors  open,  and  by  reason  thereof 
the  goods  happen  to  be  stolen  with  his  own  ;  yet  he  shall  not  be  charged, 
because  it  is  the  bailor's  own  foil}'  to  trust  such  an  idle  fellow.  So  that 
this  sort  of  bailee  is  the  least  responsible  for  neglects,  and  under  the 
least  obligation  of  any  one,  being  bound  to  no  other  care  of  the  bailed 
goods  than  he  takes  of  his  own.  This  Bracton  I  have  cited  is,  I  confess, 
an  old  author,  but  in  this  his  doctrine  is  agreeable  to  reason,  and  to 
what  the  law  is  in  other  countries.  The  civil  law  is  so,  as  you  have  it 
in  Justinian's  Inst.  lib.  3,  tit.  15.  There  the  law  goes  farther,  for  there 
it  is  said,  Ex  eo  solo  tenetur,  si  quid  dolo  commiserit :  culpae  autem 
nomine,  id  est,  desidife  ac  negligeutiae,  non  tenetur.  Itaque  securus 
est  qui  parum  diligenter  custoditam  rem  furto  amiserit,  quia  qui  negli- 
genti amico  rem  custodiendam  tradit,  non  ei,  sed  suifi  facilitati  id  im- 
putare  debet.  So  that  a  bailee  is  not  chargeable  without  an  apparent 
gross  neglect.  And  if  there  is  such  a  gross  neglect,  it  is  looked  upon 
as  an  evidence  of  fraud.  Nay,  suppose  the  bailee  undertakes  safely  and 
securely  to  keep  the  goods,  in  express  words,  yet  even  that  won't  charge 
him  with  all  sorts  of  neglects.  For  if  such  a  promise  were  put  into 
writing,  it  would  not  charge  so  far,  even  then.  Hob.  34,  a  covenant, 
that  the  covenantee  shall  have,  occupy,  and  enjoy  certain  lands,  does 
not  bind  against  the  acts  of  wrong  doers.  3  Cro.  214,  ace.  2  Cro.  425, 
ace.  upon  a  promise  for  quiet  enjoyment.  And  if  a  promise  will  not 
charge  a  man  against  wrong  doers,  when  put  in  writing,  it  is  hard 
it  should  do  more  so  when  spoken.  Doct.  &,  Stud.  130  is  in  point, 
tliat  though  a  bailee  do  promise  to  redeliver  goods  safely,  yet  if  be 
have  nothing  for  the  keeping  of  them,  he  will  not  be  answerable  for 
the  acts  of  a  wrong  doer.  So  that  there  is  neither  sufficient  reason  nor 
authority  to  support  the  opinion  in  Southcote's  Case  ;  if  the  bailee  be 
guilty  of  gross  negligence,  he  will  be  chargeable,  but  not  for  an}-  ordi- 
nary neglect.  As  to  the  second  sort  of  bailment,  viz.  coriimodatum  or 
lending  gratis,  the  borrower  is  bound  to  the  strictest  care  and  diligence, 
to  keep  the  goods  so  as  to  restore  them  back  again  to  the  lender,  be- 
cause the  bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be 
guilty  of  the  least  neglect,  he  will  be  answerable ;   as  if  a  man  should 


COGGS   V.   BERNARD.  23 

lend  another  a  horse,  to  go  westward,  or  for  a  month  ;  if  the  bailee  go 
northward,  or  Iveep  the  liorse  above  a  montli,  if  any  accident  happen  to 
the  horse  in  the  northern  journey,  or  after  the  expiration  of  the  niontli, 
tlie  bailee  will  be  chargeable  ;  because  he  has  made  use  of  the  horse 
contrary  to  the  trust  he  was  lent  to  him  under,  and  it  may  be  if  the 
horse  Iiad  been  used  no  otherwise  than  he  was  lent,  that  accident  would 
not  have  befallen  him.  This  is  mentioned  in  Bracton,  ubi  st/jrni ;  his 
words  are,  Is  autem  cui  res  aliqua  utenda  datur,  re  obligatur,  quae  com. 
modata  est,  sed  magna  differentia  est  inter  mutuum  et  commodatum  ; 
quia  is  qui  rem  mutuam  accepit,  ad  ipsam  restituendam  tenetur,  vel  ejus 
pretium,  si  forte  incendio,  ruina,  naufragio,  aut  latronum  vel  hostium  in- 
cursu,  consumpta  fuerit,  vel  deperdita,  subtracta  vel  al)luta.  P2t  qui  rem 
utendam  accepit,  non  sufflcit  ad  rei  custodiam,  quod  talera  diligentiam  ad- 
hibeat,  qualem  suis  rebus  propriis  adhibere  solet,  si  alius  eam  diligentius 
potuit  custodire  ;  ad  vim  autem  majorem,  vel  casus  fortuitos  non  tenetur 
quis,  nisi  culpa  sua  intervenerit.  Ut  si  rem  sibi  commodatam  domi,  se- 
cum  detulerit  cum  peregre  profectus  fuerit,  et  illam  incursu  hostium  vel 
prffidonum,  vel  naufragio  amiserit  non  est  dubium  quin  ad  rei  restitu- 
tionem  teneatur.  I  cite  this  author,  though  I  confess  he  is  an  old  one, 
because  his  opinion  is  reasonable,  and  very  much  to  ray  present  purpose, 
and  there  is  no  authority  in  the  law  to  the  contrary.  But  if  the  bailee 
put  tills  horse  in  his  stal)le,  and  he  were  stolen  from  thence,  the  bailee 
shall  not  be  answerable  for  him.  But  if  he  or  his  servant  leave  the 
house  or  stable  doors  open,  and  the  thieves  take  the  opportunity  of  that, 
and  steal  the  horse,  he  will  be  chargeable  ;  because  the  neglect  gave  the 
thieves  the  occasion  to  steal  the  horse.  Bracton  says,  the  bailee  must 
use  the  utmost  care,  but  yet  he  shall  not  be  chargeable,  where  there  is 
such  a  force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio  or  lending  for  hire, 
in  this  case  the  bailee  is  also  bound  to  take  the  utmost  care,  and  to 
return  the  goods  when  the  time  of  the  hiring  is  expired.  And  here 
again  I  must  recur  to  my  old  author,  fol.  62,  b.  Qui  pro  usu  vestimen- 
torum  auri  vel  argenti,  vel  alterius  ornamenti,  vel  jumenti,  mercedem 
dederlt  vel  promiserit,  talis  ab  eo  desideratur  custodia,  qualem  diligen- 
tissimus  paterfamilias  suis  rebus  adhibet,  quam  si  proestiterit,  et  rem 
aliquo  casn  amiserit,  ad  rem  restituendam  non  tenebitur.  Nee  sufflcit 
aliquem  talem  diligentiam  adliibere,  qualem  suis  rebus  propriis  adhiberet, 
nisi  talem  adliibuerit,  de  qua  superius  dictum  est.  From  whence  it 
appears  that  if  goods  are  let  out  for  a  rewai'd,  the  hirer  is  bound  to 
the  utmost  diligence,  such  as  the  most  diligent  father  of  a  family  uses ; 
and  if  he  uses  that,  he  sliall  be  discharged.  But  every  man,  how  dili- 
gent soever  he  be,  being  liable  to  the  accident  of  robbers,  though  a 
diligent  man  is  not  so  lialile  as  a  careless  man,  the  bailee  shall  not 
be  answerable  in  this  case,  if  the  goods  are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadiicm,  or  a  pawn,  in  this  I 
shall  consider  two  things  ;  first,  what  property  the  pawnee  has  in  the 
pawn  or  pledge,  and  secondly  for  wliat  neglects  he  shall  make  satisfac- 
tion.    As  to  the  first,  he  has   a  special  property,  for  the  pawn  is  a 


24  COGGS   V.   BERNARD. 

securing  to  the  pawnee  that  he  shall  be  repaid  his  debt,  and  to  compel 
the  pawnor  to  paj-  him.  But  if  the  pawn  be  such  as  it  will  be  the  worse 
for  using,  the  pawnee  cannot  use  it,  as  clothes,  &c.  ;  but  if  it  be  such 
as  will  be  never  the  worse,  as  if  jewels  for  the  purpose  were  pawned  to 
a  lady,  she  might  use  them.  But  then  she  must  do  it  at  her  peril,  for 
whereas  if  she  keeps  them  locked  up  in  her  cabinet,  if  her  cabinet  should 
be  broke  open  and  the  jewels  taken  from  thence,  she  would  be  excused  ; 
if  she  wears  them  abroad,  and  is  there  robbed  of  them,  she  will  be  an- 
swerable. And  the  reason  is,  because  the  pawn  is  in  the  nature  of  a 
deposit,  and  as  such  is  not  liable  to  be  used.  And  to  this  effect  is 
Ow.  123.  But  if  the  pawn  be  of  such  a  natui-e,  as  the  pawnee  is  at 
any  charge  about  the  thing  pawned,  to  maintain  it,  as  a  horse,  cow, 
&c.,  then  the  pawnee  ma}'  use  the  horse  in  a  reasonable  manner,  or 
milk  the  cow,  &c.,  in  recompense  for  the  meat.  As  to  the  second 
point,  Bracton,  99,  b,  gives  you  tlie  answer.  Creditor,  qui  pignus 
accepit,  re  obligatur,  et  ad  illam  restituendam  tenetur ;  et  cum  hujus- 
modi  res  in  pignus  data  sit  utriusque  gratia,  scilicet  debitoris,  quo  niagis 
ei  pecunia  crederetur,  et  creditoris  quo  magis  ei  in  tuto  sit  creditum, 
sutticit  ad  ejus  rei  custodiam  diligentiam  exactam  adhibere,  quam  si 
prajstiterit,  et  rem  casu  amiserit,  securus  esse  possit,  nee  impedietur 
creditum  petere.  In  etfect,  if  a  creditor  takes  a  pawn,  he  is  bound  to 
restore  it  upon  the  pa^'ment  of  the  debt ;  but  yet  it  is  sufficient,  if  the 
pawnee  use  true  diligence,  and  he  will  be  indemnified  in  so  doing,  and 
notwithstanding  the  loss,  yet  he  shall  resort  to  the  pawnor  for  his  debt. 
Agreeable  to  this  is  29  Ass.  28,  and  Southcotc's  Case  is.  But  indeed 
the  reason  given  in  Southcote's  Case  is,  because  the  pawnee  has  a  special 
propert}-  in  the  pawn.  But  that  is  not  the  reason  of  the  case  ;  and 
there  is  another  reason  given  for  it  in  the  book  of  Assize,  which  is  in- 
deed the  true  reason  of  all  these  cases,  that  the  law  requires  nothing 
extraordinary  of  the  pawnee,  but  onh-  that  he  shall  use  an  ordinary  care 
for  restoring  tlie  goods.  But  indeed,  if  the  monev  for  which  the  goods 
were  pawned  be  tendered  to  the  pawnee  before  they  are  lost,  then  the 
pawnee  shall  be  answerable  for  them  ;  because  the  pawnee,  by  detain- 
ing them  after  the  tender  of  the  money,  is  a  wrong  doer,  and  it  is  a 
wrongful  detainer  of  the  goods,  and  the  special  property  of  the  pawnee 
is  determined.  And  a  man  that  keeps  goods  by  wrong  must  be  answer- 
able for  them  at  all  events,  for  the  detaining  of  them  by  him  is  the  rea- 
son of  the  loss.  Upon  the  same  difference  as  the  law  is  in  relation  to 
pawns,  it  will  be  found  to  stand  in  relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  otherwise 
manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of  two 
sorts  ;  either  a  delivery  to  one  that  exercises  a  public  employment,  or  a 
delivery  to  a  private  person.  First,  if  it  be  to  a  person  of  the  first  sort, 
and  he  is  to  have  a  reward,  he  is  bound  to  answer  for  the  goods  at  all 
events.  And  this  is  the  case  of  the  common  carrier,  common  hoyman, 
master  of  a  ship,  &c.,  which  case  of  a  master  of  a  ship  was  first  ad- 
judged 26  Car.  2,  in  the  case  of  Mors  v.  Slew.  Raym.  220.  1  Vent. 
190,  238.     The  law  charges  this  person,  thus  intrusted  to  carry  goods, 


COGGS    V.    BEUNAKD.  25 

against  all  events  but  acts  of  God,  and  of  the  enemies  of  the  king.  For 
though  the  force  be  never  so  great,  as  if  an  irresistible  multitude  of 
people  siiould  rob  him,  nevertheless  he  is  chargeable.  And  this  is  a 
politic  establishment,  contrived  by  the  policy  of  the  law  for  the  safety 
of  all  persons,  the  necessity  of  whose  affairs  oblige  them  to  trust  these 
sorts  of  persons,  that  they  may  be  safe  in  their  ways  of  dealing  ;  for  else 
these  carriers  might  have  an  opportunity  of  undoing  all  persons  that 
had  any  dealings  with  them,  by  combining  with  thieves,  &c.,  and  yet 
doing  it  in  such  a  clandestine  manner  as  would  not  be  possible  to  be 
discovered.  And  this  is  the  reason  the  law  is  founded  upon  in  that 
point.  The  second  sort  are  bailies,  factors,  and  such  like.  And  though 
a  bailie  is  to  have  a  reward  for  his  management,  yet  he  is  onl}'  to  do 
the  best  he  can.  And  if  he  be  robbed,  &c.,  it  is  a  good  account.  And 
the  reason  of  his  being  a  servant  is  not  the  thing ;  for  he  is  at  a  dis- 
tance from  his  master,  and  acts  at  discretion,  receiving  rents  and  selling 
corn,  &c.  And  yet  if  he  receives  his  master's  money,  and  keeps  it  locked 
up  with  a  reasonable  care,  he  shall  not  be  answerable  for  it,  though  it 
be  stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor  under  his 
master's  immediate  care.  But  the  true  reason  of  the  case  is,  it  would 
be  unreasonable  to  charge  him  with  a  trust,  fartlier  than  the  nature  of 
the  thing  puts  it  in  his  power  to  perform  it.  But  it  is  allowed  in  the 
other  cases,  by  reason  of  the  necessity  of  the  thing.  The  same  law  of 
a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is 
to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  management 
the  goods  are  spoiled.  fSecondl}',  it  is  to  be  understood  that  there  was 
a  neglect  in  the  management.  But  thirdly,  if  it  had  appeared  that  the 
mischief  happened  by  any  person  that  met  the  cart  in  the  wa}',  the  bailee 
had  not  been  chargeable.  As  if  a  drunken  man  had  come  by  in  the 
streets  and  had  pierced  the  cask  of  brandy  ;  in  this  case  the  defendant 
had  not  been  answerable  for  it,  because  he  was  to  have  nothing  for  his 
pains.  Then,  the  bailee  having  undertaken  to  manage  the  goods,  and 
having  managed  them  ill,  and  so  bj'  his  neglect  a  damage  has  happened 
to  the  bailor,  which  is  the  case  in  question,  what  will  you  call  this?  In 
Braeton,  lib.  3,  100,  it  is  called  mandatum.  It  is  an  obligation  which 
arises  ex  mandato.  It  is  what  we  call  in  English  an  acting  by  commis- 
siou.  And  if  a  man  acts  by  commission  for  another  gratis,  and  in  the 
executing  his  commission  behaves  himself  negligently,  he  is  answeral)le. 
Vinnius,  in  his  commentaries  upon  Justinian,  lib.  3,  tit.  27,  (584,  de- 
fines niandatum  to  be  contractus  quo  aliquid  gratuito  gerendum  com- 
raittitur  et  accipitur.  This  undertaking  obliges  the  undertaker  to  a 
diligent  management.  Braeton,  uhi  siqyra,  says,  contrahitur  etiam 
obligatio  non  solum  scripto  et  verbis,  sed  et  consensu,  sicut  in  con- 
tractibus  bonre  fidei ;  ut  in  emptionibus,  vcnditionibus,  locationil)us, 
conductionibus,  societatibus,  et  mandatis.  I  don't  find  this  word  in  any 
other  author  of  our  law,  besides  in  this  place  in  Braeton,  which  is  a 
full  authority,  if  it  be  not  thought  too  old.  But  it  is  supported  hy 
good  reason  and  authority. 


26  COGGS   V.    BERNARD. 

The  reasons  are,  first,  because  in  sucli  a  case  a  neglect  is  a  deceit  to 
the  bailor.  For  when  he  intrusts  the  bailee  upon  his  undertaking  to  be 
careful,  he  has  put  a  fraud  upon  the  plaintiff  b}'  being  negligent,  his  pre- 
tence of  care  being  the  persuasion  that  induced  the  plaintiff  to  trust  him. 
And  a  breach  of  a  trust  undertaken  voluntaril}-  will  be  a  good  ground 
for  an  action.  1  Roll.  Abr.  10.  2  Hen.  7,  11,  a  strong  case  to  this 
matter.  Tliere  the  case  was  an  action  against  a  man,  who  had  under- 
taken to  keep  an  hundred  sheep,  for  letting  them  be  drowned  by  his 
default.  And  there  the  reason  of  the  judgment  is  given,  because  when 
the  part}-  has  taken  upon  him  to  keep  the  sheep,  and  after  suffers  them 
to  perish  in  his  default ;  inasmuch  as  he  has  taken  and  executed  his 
bargain,  and  has  them  in  his  custod}',  if  after  he  does  not  look  to  them, 
an  action  lies.  For  here  is  his  own  act,  viz.  his  agreement  and  prom- 
ise, and  that  after  broke  of  his  side,  that  shall  give  a  sufficient  cause 
of  action. 

But  secondl}'  it  is  objected,  that  there  is  no  consideration  to  ground 
this  promise  upon,  and  therefore  the  undertaking  is  but  nudum  jKicttmi. 
But  to  tliis  I  answer,  that  the  owner's  trusting  him  with  the  goods  is  a 
sufficient  consideration  to  oblige  him  to  a  careful  management.  Indeed, 
if  the  agreement  had  been  executory,  to  carrv  these  brandies  from  the 
one  place  to  the  other  such  a  da}',  the  defendant  had  not  been  bound  to 
carr\-  them.  But  this  is  a  different  case,  for  assumpsit  does  not  only 
signify  a  future  agreement,  but  in  such  a  case  as  this  it  signifies  an 
actual  entry  upon  the  thing,  and  taking  the  trust  upon  himself.  And  if 
a  man  will  do  that,  and  miscarries  in  the  performance  of  his  trust,  an 
action  will  lie  against  him  for  that,  though  nobody  could  have  compelled 
him  to  do  the  thing.  The  19  Hen.  6,  49,  and  the  other  cases  cited  by 
my  brothers,  show  that  this  is  the  difference.  But  in  the  11  Hen.  4, 
33,  this  difference  is  clearly  put,  and  that  is  the  only  case  concerning 
this  matter  which  has  not  been  cited  b}-  my  brothers.  There  the  action 
was  brought  against  a  carpenter,  for  that  he  had  undertaken  to  build 
the  plaintiff  a  house  within  such  a  time,  and  had  not  done  it,  and  it 
was  adjudged  the  action  would  not  lie.  But  there  the  question  was  put 
to  the  court,  what  if  he  had  built  the  house  unskilfully,  and  it  is  agreed 
in  that  case  an  action  would  have  lain.  There  has  been  a  question 
made,  if  I  deliver  goods  to  A.,  and  in  consideration  thereof  he  promise 
to  redeliver  them,  if  an  action  will  lie  for  not  redelivering  them  ;  and 
in  Yelv.  4,  judgment  was  given  that  the  action  would  lie.  But  that 
judgment  was  afterwards  reversed,  and  according  to  that  reversal, 
there  was  judgment  afterwards  entered  for  the  defendant  in  the  like 
case.  Yelv.  128.  But  those  cases  were  grumbled  at,  and  the  reversal 
of  tliat  judgment  in  Yelv.  4,  was  said  by  the  judges  to  be  a  bad  resolu- 
tion, and  the  contrary  to  that  reversal  was  afterwards  most  solemnly 
adjudged  in  2  Cro.  667,  Tr.  21  Jac.  1,  in  the  king's  bench,  and  that 
judgment  affirmed  upon  a  writ  of  error.  And  3'et  there  is  no  benefit 
to  the  defendant,  nor  no  consideration  in  that  case,  but  the  having 
the  money  in  his  possession,  and  being  trusted  with  it,  and  yet  that 
was  held  to  be  a  good  consideration.     And  so  a  bare  being  trusted 


DALE    V.    HALL.  27 

with  another  man's  goods,  must  be  taken  to  bo  a  sufficient  considera- 
tion, if  the  bailee  once  enter  upon  the  trust  and  take  the  goods  into  his 
possession.  The  declaration  in  the  case  of  Mors  v.  Slew  was  drawn  bj' 
the  greatest  drawer  in  England  in  that  time,  and  in  that  declaration,  as 
it  was  always  in  all  such  cases,  it  was  thought  most  prudent  to  put  in 
that  a  reward  was  to  be  paid  for  the  carriage.  And  so  it  has  been  usual 
to  put  it  in  the  writ,  wliere  the  suit  is  by  original.  I  have  said  thus 
mucli  in  tliis  case,  because  it  is  of  great  consequence  that  the  law 
should  be  settled  in  this  point,  but  I  don't  know  whether  I  may  have 
settled  it,  or  may  not  rather  have  unsettled  it.  But  however  tliat  hap- 
pen, I  have  stirred  these  points,  which  wiser  heads  in  time  may  settle. 
And  judgment  was  given  for  the  plaintiff.^ 


DALE    V.  HALL. 
King's  Bench,  1750. 

[I    Wilson,  281.] 

Action  upon  the  case  against  a  shipmaster  or  keelman  who  carries 
goods  for  hire  from  port  to  port ;  the  plaintiff  does  not  declare  against 
him  as  a  common  carrier  upon  the  custom  of  the  realm,  but  the  decla- 
ration is  that  the  defendant  at  the  special  instance  of  tlie  plaintiff  under- 
took to  carry  certain  goods  consisting  of  knives  and  other  liardware 
safe  from  such  a  port  to  such  a  port,  and  that  in  consideration  thereof 
the  plaintiff  undertook  and  promised  to  pa>'  iiim  so  much  money,  that 
tlie  goods  were  delivered  to  the  defendant  on  board  his  keel,  and 
that  the  goods  were  kept  so  negligently  b}'  him  that  thej-  were  spoiled, 
to  the  plaintiff's  damage. 

For  the  defendant  it  was  insisted  at  the  trial,  that  as  the  plaintiff  had 
proved  no  particular  negligence  in  the  defendant,  that  he  might  be  per- 
mitted to  give  in  evidence  that  he  had  taken  all  possible  care  of  the 
goods,  that  the  rats  made  a  leak  in  the  keel  or  hoy,  whereby  the  goods 
were  spoiled  by  the  water  coming  in,  that  they  pumped  and  did  all  they 
could  to  prevent  the  goods  being  damaged  ;  which  evidence  the  Judge 
permitted  to  be  given,  and  thereupon  left  it  to  the  jur}',  who  found  a 
verdict  for  the  defendant. 

Defendant  argued  that  the  breach  assigned  being  that  b}'  the  negli- 

1  See  Jones,  Bailments,  104  [1781].  "A  carrier  is  regularly  answerable  for  neglect, 
but  not  regularly  for  damage  occasioned  by  the  attacks  of  ruffians,  any  more  than  for 
hostile  violence  or  usavoidable  misfortune  ;  but  tlie  great  maxims  of  policy  and  good 
government  make  it  necessary  to  except  from  this  rule  the  case  of  robbery,  lest  con- 
federacies should  be  formed  between  carriers  and  desperate  villains,  with  little  or  no 
chance  of  detection.  Although  the  Act  of  God,  which  the  ancients  too  called  Qeoii  0iav 
and  Vim  dioinam,  be  au  expression  which  long  habit  has  rendered  familiar  to  us,  yet 
perhaps  on  that  very  account  it  might  be  more  proper,  as  well  as  more  decent,  to  sub- 
stitute in  its  place  inevitable  acccident  .  .  .  Law,  which  is  merely  a  practical  science, 
cannot  use  terms  too  popular  and  perspicuous." — Ed. 


28  FORWARD   V.   PITTARD. 

gence  of  the  defaulter  the  goods  were  spoiled,  therefore  negligence  is 
the  A-ery  gist  of  this  action,  and  the  defendant  has  proved  there  was 
no  negligence. 

Lek,  C.  J.  The  declaration  is,  that  the  defendant  undertook  for  hire 
to  carrj'  and  deliver  the  goods  safe,  and  the  breach  assigned  is  that 
tlie}'  were  damaged  by  negligence  ;  this  is  no  more  than  what  the  law 
says.  Everything  is  a  negligence  in  a  carrier  or  hoyman  that  the  law 
does  not  excuse,  and  he  is  answerable  for  goods  the  instant  he  receives 
them  into  his  custody,  and  in  all  events,  unless  the}'  happen  to  be 
damaged  by  the  act  of  God,  or  the  king's  enemies;  and  a  promise  to 
carry  safely  is  a  promise  to  keep  safelj'. 

Wright,  J.,  of  the  same  opinion. 

Denison,  J.  The  law  is  very  clear  in  this  case  for  the  plaintiff;  the 
declaration  upon  the  custom  of  the  realm  is  the  same  in  effect  with  the 
present  declaration.   .  .   . 

Foster,  J.,  of  the  same  opinion  ;   and  a  new  trial  was  granted.^ 


FORWARD   V.   PITTARD. 
King's  Bench,  1785. 

[1  Term  Reports,  27.] 

This  was  an  action  on  the  case  against  the  defendant  as  a  common 
carrier,  for  not  safel^y  carrying  and  delivering  the  plaintiff's  goods.  This 
action  was  tried  at  the  last  summer  assizes  at  Dorchester,  before  Mr. 
Baron  Periyn,  when  the  jury  found  a  verdict  for  the  plaintiff,  subject 
to  tiie  opinion  of  the  Court  on  the  following  case  :  — 

'•  That  the  defendant  was  a  common  carrier  from  London  to  Shafts- 
bury.  That  on  Thursday  the  14tli  of  October,  1784,  the  plaintiff  de- 
livered to  him  on  Weyhill  12  pockets  of  hops  to  be  carried  by  him  to 
Andover,  and  to  be  bj'  him  forwarded  to  Shaftsbuiy  by  his  public  road 
waggon,  which  travels  from  London  through  Andover  to  Shaftsbur}'. 
That  by  the  course  of  travelling,  such  waggon  was  not  to  leave  Andover 
till  the  Saturday  evening  following.  That  in  the  night  of  the  following 
day  after  the  deliver}'  of  the  hops,  a  fire  broke  out  in  a  booth  at  the 
distance  of  100  yards  from  the  booth  in  which  the  defendant  had  de- 
posited the  hops,  which  burnt  for  some  time  with  unextinguishable 
violence,  and  during  that  time  communicated  itself  to  the  said  booth  in 
which  the  defendant  had  deposited  the  hops,  and  entirely  consumed 
them  without  any  actual  negligence  in  the  defendant.  That  the  fire 
was  not  occasioned  by  lightning." 

a.  Bond,  for  the  plaintiff.     The  question  is,  whether  a  carrier  is 

1  Of  this  case  Sir  William  Jones  says  (Bailments,  p.  105)  :  "  The  true  reason  of 
this  decision  is  not  mentioned  by  the  reporter :  it  was  in  fact  at  least  ordinary  negligence 
to  let  a  rat  do  such  mischief  in  the  vessel ;  and  the  Roman  law  has  on  this  principle 
decided  that  '  si  fullo  vestimeuta  polienda  acceperit  eaque  mures  roseriut,  ex  locato 
tenetur,  quia  debuit  ab  hac  re  cavere.'  "  —  Ed. 


FOllWARD   v.   PITTAED.  29 

liable  for  the  loss  of  goods  occasioned  by  fire,  without  any  negligence 
in  him  or  his  servants.  The  general  proposition  is,  that  a  carrier  is 
liable  in  all  cases,  except  the  loss  be  occasioned  by  the  act  of  God,  or 
the  King's  enemies.  (Lord  Raymond,  909.  1  Wils.  281.)  And  this 
doctrine  has  lately  been  recognized  by  this  Court,  in  the  case  of  the 
Company  of  the  Trent  Navigation  v.  Wood.  (East.  2o  Geo.  3.  B.  R.) 
The  only  doubt  is  on  the  construction  of  the  words,  "  the  act  of  God." 
It  is  an  effect  immediately  produced  without  the  interposition  of  any 
human  cause.  In  Amies  and  Stephens  (1  Stra.  128)  these  words  were 
held  to  include  the  case  of  a  ship  being  lost  by  tempest.  In  the  books, 
under  the  head  of  "  waste,"  there  is  an  analogous  distinction  to  be 
found:  if  a  house  fall  down  by  tempest,  or  be  burned  by  lightning,  it 
is  no  waste  ;  but  burning  by  negligence  or  mischance  is  waste.  (Co. 
Litt.  53.  a.  b.)  Before  the  6th  of  Anne  (6  Ann.  c.  31  ;  10  Ann.  c.  14)  an 
action  lay  against  any  person  in  whose  house  a  fire  accidentally  began : 
this  shows  that  an  accidental  fire  was  not  in  law  considered  as  the  act 
of  God  ;  but  the  person  was  punishable  for  negligence.  Suppose  a  fire 
happens  in  a  house  where  there  are  different  lodgers,  each  of  whose  lodg- 
ings is  considered  as  a  separate  house  :  if  the  fire  be  communicated  from 
one  lodging  to  another,  and  the  Court  say  the  first  fire  was  the  act  of 
man,  at  what  time  will  it  be  said  that  it  ceases  to  be  the  act  of  man  and 
commences  to  be  the  act  of  God?  if  it  were  not  the  act  of  man  in 
the  first  house,  it  is  impossible  to  draw  the  line.  In  the  case  of  the 
Company  of  the  Trent  Navigation  and  Wood,  Lord  Mansfield  said, 
"  By  the  act  of  God  is  meant  a  natural,  not  merely  an  inevitable, 
accident." 

If  it  be  contended  for  the  defendant  that  it  is  here  stated  that  there 
was  no  actual  negligence,  that  will  not  serve  him  ;  for  this  action  was 
not  founded  in  negligence.  Lord  Holt  says,  there  are  several  species 
of  bailments,  and  different  degrees  of  liability  annexed  to  each  :  and  a 
carrier  is  that  kind  of  bailee,  who  is  answerable  though  there  be  no 
actual  negligence. 

Bovouyh,  for  the  defendant,  observed  that  the  point  in  this  case  was 
not  before  the  Court  in  an}-  of  the  cases  cited.  The  general  question 
here  is,  whether  a  carrier  is  compellable  to  make  satisfaction  for  goods 
delivered  to  him  to  carr}^,  and  destroyed  bj-  mere  accident,  in  a  case 
where  negligence  is  so  far  from  being  imputed  to  him,  that  it  is  ex- 
pressly negatived?  This  action  of  assumpsit  must  be  considered  as  an 
action  founded  on  what  is  called  the  custom  of  the  realm  relating  to 
carriers.  And  from  a  review  of  all  the  cases  on  this  subject  it  mani- 
festly appears  that  a  carrier  is  only  liable  for  damage  and  loss  occasioned 
by  the  acts  or  negligence  of  himself  and  servants,  that  is,  for  such 
damage  and  loss  only  as  human  care  or  foresight  can  prevent ;  and  that 
there  is  no  implied  contract  between  him  and  his  employers  to  indemnify 
them  against  unavoidable  accidents.  The  law  with  respect  to  land  car- 
riers and  water  carriers  is  the  same.  Rich  v.  Kneeland,  Cro.  Jac.  330. 
Hob.  17.  5  Burr.  2827. 

In  Vid.  27.     The  declaration,  in  an  action  against  a  waterman  for 


30  FORWARD   V.    PITTARD. 

negligently  keeping  his  goods,  states  the  custom  relative  to  carriers 
thus,  "  absque  substractione,  amissione,  seu  spoliatione,  portare  tenen- 
tur,  ita  quod  pro  defectu  dictoruni  coramunium  portatorum  seu  ser- 
vientium  suorum,  hujusinodi  bona  et  catalla  eis  sic  ut  prefertur  deliberata, 
non  sint  perdita,  amissa,  seu  spoliata."  It  then  states  the  breach,  that 
the  defendant  had  not  delivered  them,  and  "  pro  defectu  bonse  custodiae 
ipsius  defendentis  et  servientiura  suorum  perdita  et  amissa  fuerunt."  In 
Biownl.  Red.  12.  the  breach  in  a  declaration  against  a  carrier  is,  "  de- 
fendens  tam  negiigenter  et  improvide  custodivit  et  carriavit,"  etc.  In 
Clift.  38,  39.  Mt)d.  Intr.  91,  92.  and  Heine  76.  the  entries  are  to  the 
same  effect.  In  Rich  and  Kneeland  (Hob.  17),  the  custom  is  stated  in 
a  similar  way:  and  in  the  Exchequer  Chamber  it  was  resolved,  "  that 
though  it  was  laid  as  a  custom  of  the  realm,  yet  indeed  it  is  common 
law."  On  considering  these  cases,  it  is  not  true  that  ''  the  act  of  God, 
and  of  the  King's  enemies,"  is  an  exception  from  the  law.  For  an  ex- 
ception is  always  of  something  comprehended  within  the  rule,  and 
therefore  excepted  out  of  it :  but  the  act  of  God  and  of  the  King's  en- 
emies is  not  witiiin  the  law  as  laid  down  in  the  books  cited. 

All  the  authorities  cited  by  tlie  counsel  for  the  plaintiff  are  founded 
on  the  dictum  in  Coggs  v.  Bernard  (2  Lord  Raymond,  909),  where  this 
doctrine  was  first  laid  down  :  but  Lord  Holt  did  not  mean  to  state  the 
l^roposition  in  the  sense  in  which  it  has  been  contended  he  did  state  it. 
He  did  not  intend  to  say  that  cases  falling  within  the  reason  of  what 
are  vulgarly  called  "  acts  of  God,"'  should  not  also  be  good  defences  for  a 
carrier.  After  saying  (Lord  Raymond,  918),  "  the  law  charges  the  persons, 
tlius  intrusted  to  carry  goods,  against  all  events,  l)ut  the  acts  of  God  and 
of  the  enemies  of  the  King,"  he  proceeds  thus,  "  for  though  the  force  be 
never  so  great,  as  if  an  irresistible  multitude  of  people  should  rob  him, 
nevertheless  he  is  chargeable.  And  this  is  a  politic  establishment,  con- 
trived by  the  policy  of  the  law  for  the  safety  of  all  persons,  the  necessity 
of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons,  that  thej'  may 
be  safe  in  their  wavs  of  dealing  ;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  who  had  any  dealings  with  them,  by 
combining  with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine 
manner,  as  would  not  be  possible  to  be  discovered."  As  Lord  Holt 
therefore  states  the  responsibility  of  carriers  in  case  of  robber}'  to  take 
its  origin  from  a  ground  of  policy,  he  could  not  mean  to  say  that  a  car- 
rier was  also  liable  in  cases  of  accidents,  where  neither  combination  or 
negligence  can  possibly  exist. 

It  appears  from  the  Doctor  and  Student  (Dial.  2.  c.  38.  p.  270)  tliat, 
at  the  time  that  book  was  written,  the  carrier  was  held  liable  for  rob- 
beries which  diligence  and  foresight  might  prevent.  And  what  is  there 
said  agrees  precisel}-  with  the  custom  ;  and  does  not  bear  hard  on 
the  carrier.  If  he  will  travel  by  night,  and  is  robbed,  he  has  no  remedy 
against  the  hundred  ;  for  then  he  is  not  protected  by  the  statute  of 
Winton,  and  he  ought  to  be  answerable  to  the  employer.  If  he  travel 
by  day  and  is  robbed  he  has  a  remedy.  Now  the  carrier  maj'  not  per- 
haps be  worth  suing ;  and  the  employer  may  bring  the  action  against 


FORWARD   V.   PITTARD.  31 

the  hnndrecl  in  his  own  name  ;  which  action  he  would  be  deprived  of,  if 
the  carrier  travelled  by  night. 

There  is  not  a  single  authority  in  all  the  old  books  which  says  that  a 
carrier  is  responsil)le  for  mere  accidents.  lie  only  engages  against 
substraction,  spoil,  and  loss,  occasioned  by  the  neglect  of  himself  or 
his  servants.  These  words  plainly  point  at  acts  to  be  done,  and  omis- 
sion of  care  and  diligence.  But  in  the  present  case  there  is  no  act 
done  ;  and  there  cannot  be  said  to  be  any  omission  of  care  and  dili- 
gence, since  they  could  not  have  prevented  the  calainit}'. 

Lord  Holt,  in  Coggs  v.  Bernard,  seems  to  have  tiaced,  with  great  at- 
tention, the  different  species  of  bailments.  He  cites  many  passages 
from  Bracton,  who  has  nearly  copied  them  from  Justinian.  So  that  it 
is  probable  that  the  custom  relating  to  carriers  took  its  origin  from  the 
civil  law  as  to  bailments.  Now  it  is  observable  that  in  no  one  case  of 
bailment  is  the  bailee  answerable  for  an  accident:  he  is  onl}'  liable  for 
want  of  diligence.  The  only  difference  in  this  respect  between  the  civil 
and  the  English  law  is,  that  the  former  (Justin,  lib.  3.  15.  S.  2,  3,  4. 
Tit.  35.  S.  5)  distinguishes  between  the  different  degrees  of  diligence 
required  in  the  different  species  of  bailment ;  which  the  latter  does 
not. 

In  all  the  cases  to  be  found  in  our  books,  may  be  traced  the  true 
ground  of  liabilitj',  negligence.  If  the  law  were  not  as  is  now  contended 
for,  the  question  of  negligence  could  never  have  arisen  ;  and  the  case  of 
robbery  could  not  have  borne  an}'  argument ;  whereas  the  case  of  Mors 
V.  Slue  (1  Vent.  190.  238)  came  on  repeatedl}'  before  the  Court,  and  cre- 
ated ver}'  considerable  doubts. 

In  the  case  of  Dale  i-.  Hall  (1  Wils.  281),  and  the  proprietors  of  the 
Trent  Navigation  v.  Wood,  there  were  clear  facts  of  negligence.  In  the 
first,  the  rats  gnawed  a  hole  in  the  hoy,  which  undoubtedly  might  have 
been  prevented.  And  in  the  other,  each  of  the  judges,  in  giving  his 
opinion,  said  there  was  negligence. 

In  the  year  books  (22  Ass.  41)  there  is  a  ease  of  an  action  against  a 
waterman  for  overloading  his  boat  so  that  the  plaintift"s  horse  was 
drowned.  This  case  is  recognized  in  Williams  v.  Lloyd  (W.  Jones, 
180),  where  it  is  said  "■  it  was  there  agreed  that  if  he  had  not  surcharged 
the  boat,  although  the  horse  was  drowned,  no  action  lies,  notwithstand- 
ing the  assumi)sit:  but  if  he  surcharge  the  boat,  otherwise  ;  for  there  is 
default  and  negligence  in  the  party."  The  Court  in  22  Ass.  41,  said, 
"  it  seems  that  3  on  tresi^assed  when  you  surcharged  the  boat,  by  which 
the  horse  perished."  The  same  ease  is  to  be  found  in  1  Ro.  Abr.  10. 
pi.  18.  Bro.  Tit.  Action  sur  le  Case,  78.  And  it  is  also  recognized  in 
Williams  r.  Hide  and  Ux.  Palm.  548. 

In  Winch.  26.  To  an  action  against  a  carrier,  there  is  a  special  plea 
that  the  inn  in  which  the  goods  were  deposited  was  burned  by  fire,  and 
that  the  plaintiff's  goods  were  at  the  same  time  destroyed,  without  the 
default  or  neglect  of  the  defendant  or  his  servants.  To  this  the  plain- 
tiff demurred,  not  generally  but  specially,  "  that  the  plea  amounted  to 
the  general  issue." 


32  FORWAED   V.    PITTAED. 

In  all  actions  founded  in  negligence,  the  negligence  is  alleged  and 
tried,  as  a  fact ;  as  in  actions  against  a  farrier,  smith,  coachman,  etc. 
It  is  the  constant  course  in  sucli  actions  to  leave  the  question  of  neg- 
ligence to  the  jur}'.  It  appears  in  Dalston  v.  Janson  (5  Mod.  90)  that 
the  defendant  formerl}'  used  to  plead  particularly  to  the  neglect.  In  43 
Edw.  3.  33.  Clerk's  Assist.  99.  Mod.  Intr.  95.  and  Brown.  Red.  101. 
which  were  actions  founded  in  negligence,  the  negligence  is  traversed. 
Now  a  traverse  can  be  only  of  matter  of  fact.  And  here  negligence  is 
expressly  negatived  by  the  case. 

However,  if  the  Court  should  be  of  opinion  that  the  carrier  is  an- 
swerable for  every  loss,  unless  occasioned  by  the  act  of  God,  or  the 
King's  enemies,  he  then  contended  that,  as  the  act  of  God  was  a  good 
ground  of  defence,  this  accident  though  not  within  the  words,  was  within 
the  reason,  of  that  ground.  It  cannot  be  said  that  misfortunes  occasioned 
by  lightning,  rain,  wind,  etc.,  are  the  immediate  acts  of  the  Almightj*  j 
they  are  permitted  but  not  directed  b}'  him.  The  reason  why  these  ac- 
cidents are  not  held  to  charge  a  carrier  is  that  they  are  not  under  the 
control  of  the  contracting  party  ;  and  therefore  cannot  affect  the  con- 
tract, inasmuch  as  he  engages  onl}'  against  those  events  which  hy 
possibility  he  ma}-  prevent.  Lord  Bacon,  in  his  Law  Tracts,  com- 
menting on  this  maxim,  Reg.  o.  "  necessitas  inducit  privilegium  quoad 
jura  privata,"  says,  "the  law  charges  no  man  with  default  where  the 
act  is  compulsory  and  not  voluntary,  and  where  there  is  not  a  consent 
and  election  ;  therefore,  if  either  there  be  an  impossibility  for  a  man  to 
do  otherwise,  or  so  great  a  perturliation  of  tlie  judgment  and  reason,  as 
in  presumption  of  law  man's  nature  cannot  overcome,  such  necessity 
carrieth  a  privilege  in  itself."  Necessity,  he  says,  is  of  three  sorts  ;  and 
under  the  third  he  adds,  "If  a  fire  be  taken  in  a  street,  I  may  justifs' 
pulling  down  the  walls  or  house  of  another  man  to  save  the  row  from 
the  spreading  of  the  fire."  Now  in  the  present  case,  if  any  person-,  in 
order  to  stop  the  progress  of  the  flames,  had  insisted  on  pulling  down 
tlie  booth  wherein  the  hops  were  deposited,  and  in  doing  this  the  hops 
had  been  damaged,  tlie  carrier  would  not  have  been  liable  to  make  good 
such  damage  ;  for  it  would  have  been  unlawful  for  him  to  have  pre- 
vented the  pulling  down  the  booth. 

It  is  expressly  found  in  the  present  case  that  the  fire  burnt  with  un- 
extinguishable  violence.  The  breaking  out  of  the  fire  was  an  event 
which  God  only  could  foresee.  And  the  course  it  would  take  was  as 
little  to  be  discovered  by  human  penetration. 

Bond,  in  reply.  There  are  several  strong  cases  where  there  could 
not  be  any  negligence.  It  is  not  sufficient  in  these  cases  to  negative 
any  negligence  ;  for  every  thing  is  negligence  which  the  law  does  not 
excuse  (1  Wils.  282).  And  the  question  here  is,  is  this  a  case  which 
the  law  does  excuse?  In  Goflie  v.  Clinkard  (cited  in  Wils.  282.)  there 
was  all  possible  care  on  the  part  of  the  defendants.  The  judgment  in 
the  case  of  (4  Burr.  2298)  Gibbon  v.  Peyton  and  another,  which  was  an 
action  against  a  stage-coachman  for  not  delivering  money  sent,  is  ex- 
tremely strong  ;  there  Lord  Mansfield  said  (4  Burr.  2300),  "  a  common 


FORWARD   V.   PITTARD.  33 

carrier,  in  respect  of  tlie  premium  he  is  to  I'cceive,  runs  tlie  risk  of 
them,  and  must  make  good  the  loss,  though  it  happen  without  any  fault 
in  him  ;   the  reward  making  him  answerable  for  their  safe  delivery." 

That  a  carrier  was  liable  in  the  case  of  a  robbery  was  first  held  ni 
9  Ed.  4.  pi.  40. 

A  bailee  only  engages  to  take  care  of  his  goods  as  his  own,  and  is  not 
answerable  for  a  robbery  ;  but  a  carrier  insures.  1  Ventr.  190,  238. 
Sir  T.  Raym.  220.  S.  C.  1  Mod.  85. 

In  Barclay  and  Heygena  (E.  24  G.  3.  B.  R.),  which  was  an  action 
against  a  master  of  a  ship  to  recover  the  value  of  some  goods  put  on 
board  his  ship  in  order  to  be  carried  to  St.  Sebastian;  it  was  proved 
that  an  irresistible  force  broke  into  the  ship  in  the  river  Thames,  and 
stole  the  goods  ;  yet  the  defendant  was  held  answerable.  In  Sutton 
and  Mitchel  (at  the  sittings  at  Guildhall  after  Tr.  25  G.  3.  Vide  1  T.  R. 
18),  the  question  was  not  disputed  as  far  as  to  the  value  of  the  ship  and 
freight. 

There  is  no  distinction  between  that  case  and  a  land  carrier.  And 
there  can  be  no  hardship  in  tlie  Court's  determining  in  favour  of  the 
plaintiff ;  for  when  the  law  is  once  known  and  established,  the  parties 
may  contract  according  to  the  terms  which  it  prescribes. 

As  to  negligence  being  a  matter  of  fact ;  tliat  is  answered  by  the  de- 
cision in  the  Company  of  tlie  Trent  Navigation  against  Wood. 

Lord  Mansfield.  There  is  a  nicety  of  distinction  between  the  act 
of  God  and  inevitable  necessity.  In  these  cases  actual  negligence  is 
not  necessary  to  support  the  action.     Cur.  adv.  vult. 

Afterwards  Lord  Mansfield  delivered  the  unanimous  opinion  of  the 
Court. 

After  stating  the  case — The  question  is,  whether  the  common  car- 
rier is  liable  in  this  case  of  fire?  It  appears  from  all  the  cases 
for  one  hundred  years  back,  that  there  are  events  for  which  the 
carrier  is  liable  independent  of  his  contract.  By  the  nature  of  his 
contract,  he  is  liable  for  all  due  care  and  diligence  ;  and  for  any  neg- 
ligence he  is  suable  on  his  contract.  But  there  is  a  further  degree  of 
responsibility  by  the  custom  of  the  realm,  that  is,  by  the  common  law ; 
a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid  down  that  he  is  liable 
for  every  accident,  except  by  the  act  of  God,  or  the  King's  enemies- 
Now  what  is  the  act  of  God?  I  consider  it  to  mean  something  in  op- 
position to  the  act  of  man  :  for  eveiy  thing  is  the  act  of  God  that  hap- 
pens by  his  permission  ;  eveiy  thing,  b}'  his  knowledge.  But  to  prevent 
litigation,  collusion,  and  the  necessity  of  going  into  circumstances  im- 
t  possible  to  be  unravelled,  the  law  presumes  against  the  carrier,  unless 
he  shows  it  was  done  by  the  King's  enemies,  or  by  such  act  as  could 
not  happen  by  the  intervention  of  man,  as  storms,  lightning,  and 
tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is  liable: 
and  a  reason  is  given  in  the  books,  which  is  a  bad  one,  viz.  that  he 
ought  to  have  a  sufficient  force  to  repel  it :  but  that  would  be  impossible 
in  some  cases,  as  for  instance  in  the  riots  in  the  year  1780.     The  true 

3 


34  FORWARD    V.    PITTARD. 

reason  is,  for  fear  it  may  give  room  for  collusion,  that  the  master  may- 
contrive  to  be  robbed  on  purpose,  and  share  the  spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from  the  act  of 
some  man  or  other.  It  certainly  did  arise  from  some  act  of  man  ;  for  it 
is  expressly  stated  not  to  have  happened  by  lightning.  The  carrier 
therefore  in  this  case  is  liable,  inasmuch  as  he  is  liable  for  inevitable 
accident. 

Judgment  for  the  plaintiff. 


PUBLIC  DUTY  OF  CARRIERS.  35 


CHAPTEE  I. 

PUBLIC   DUTY    OF   CARRIERS. 

Section  I.     Public  Calling. 

Y.  B.  21  Hen.  VI.  55,  pi.  12  (1443).  Paston,  J.  If  I  am  riding 
along  the  highway  and  come  to  a  town  iu  which  a  smith  lives,  who  has 
material  enough  to  shoe  m3'  horse  ;  if  my  horse  has  lost  his  shoes,  and 
I  at  a  fit  time  request  him  to  shoe  the  horse  and  offer  him  enough  for 
his  labor,  and  he  refuses,  whereby  m}'  horse  is  afterwards  lost  for  want 
of  slices,  I  sa}'  tliat  in  this  same  case  I  shall  have  action  of  trespass 
on  the  case  on  his  default. 

Y.  B.  39  Hen.  VI.  18,  pi.  24  (1460).  Moile,  J.,  said,  If  I  come  to 
an  innkeeper  to  lodge  with  him,  and  he  will  not  lodge  me,  I  shall  have 
on  my  case  an  action  of  trespass  against  him  ;  and  in  the  same  way  if  I 
come  to  a  victualler  to  buy  victual,  and  he  will  not  sell,  I  shall  have  an 
action  of  trespass  on  my  case  against  him  ;  and  still  in  such  cases  if  he 
will  bring  a  writ  of  debt  against  me  on  such  dut}-,  I  shall  have  my  law. 

Prisot,  C.  J.  It  is  true  in  those  cases  that  the  defendant  wages  his 
law ;  but  the  victualler  or  innlvceper  is  not  held  to  sell  you  his  victual 
except  at  his  will,  nor  the  innkeeper  to  lodge  you  against  his  will,  but 
it  lies  in  their  election. 

Quodnota;  qumre  de  ceo. 

Danby,  J.,  said  that  an  innkeeper  is  not  bound  to  give  bread  to  his 
guest's  horse  until  he  be  paid  in  cash ;  for  the  law  does  not  compel  him 
to  put  trust  in  his  guest  for  pa3'ment. 

Y.  B.  22  Ed.  IV.  49,  pi.  15  (1483).  Brian,  J.  I  know  well,  if  I  put 
a  robe  with  a  tailor  to  be  made,  or  if  I  come  to  a  common  inn  or  a 
common  smith  with  mj'  horse,  in  all  cases  of  the  sort  I  may  have  my 
robe  lying  in  the  tailor's  shop  as  long  as  I  please  [without  its  being  sub- 
ject to  distraint] ;  for  he  is  compelled  by  the  law  to  do  it,  and  he  may 
by  the  law  detain  until  he  be  satisfied  for  making  it.  In  the  same  waj' 
my  horse  shall  be  in  the  common  inn  for  whatever  time  I  please,  for  the 
license  is  given  by  the  law,  and  the  innkeeper  ma}"  retain  until  he  be 
paid.  .  .  .  But  where  the  law  gives  license  for  a  time  certain,  there  it 
is  otherwise  ;  as  if  a  man  continues  in  a  tavern  beyond  the  proper  hour, 
there  all  his  coming  shall  be  tortious,  for  the  law  will  not  have  common 
taverns  haunted  except  in  due  time  and  season. 

Y.  B.  10  Hen.  VII.  8,  pi.  14  (1494).  Hussey,  C.  J.,  said  that  a 
victualler  shall  be  compelled  to  sell  his  victual  if  the  vendee  has  tendered 
him  ready  payment,  otherwise  not.     Quod  Brian,  C.  J.,  affirmavit. 


36  ALLNUTT   V.  INGLIS. 

y.  B.  14  Hen.  VII.  22,  pi,  4  (1499).  Higham  (arguendo).  If  I 
come  to  an  innkeeper  and  pray  to  be  lodged  with  him,  and  he  says 
that  at  that  time  he  will  not,  but  if  I  come  at  another  time  he  will  with 
pleasure,  I  shall  have  an  action  on  m}'  case,  because  it  was  his  dut}-  to 
lodge  me,  and  by  the  law  he  was  bound  to  do  it, 

Keilwa}'  50  pi.  4  (1503).  Note  that  it  was  agreed  l^v  the  Court,  that 
where  a  smith  declines  to  shoe  my  horse,  or  an  innkeeper  refuses  to  give 
me  entertainment  at  his  inn,  I  shall  have  an  action  on  the  case,  notwith- 
standing no  act  is  done  ;  ^  for  it  does  not  sound  in  covenant.  .  .  .  Note 
that  in  this  case  a  man  shall  have  no  action  against  innkeeper,  but  shall 
Biake  complaint  to  the  ruler,  by  5  Ed.  IV.  2 ;  contra,  14  Hen.  VII.  22, 


JACKSON  V.  ROGERS. 
King's  Bench,  1683. 

[2  Shower,  327.] 

Action  on  the  case,  for  that  whereas  the  defendant  is  a  common  car- 
rier from  London  to  L^mmington  ct  ahinde  retrorsuni.,  and  setting  it 
forth  as  the  custom  of  England,  that  he  is  bound  to  carr}'  goods,  and 
that  the  plaintiff  brought  him  such  a  pack,  he  refused  to  carry  them, 
though  offered  his  hire. 

And  held  by  Jefferies,  C.  J.,  that  the  action  is  maintainable,  as  well 
as  it  is  against  an  innkeeper  for  refusing  a  guest,  or  a  smith  on  the  road 
who  refuses  to  shoe  my  horse,  being  tendered  satisfaction  for  the  same. 

Note,  That  it  was  alleged  and  proved  that  he  had  convenience  to 
carr^-  the  same ;  and  the  plaintiff  had  a  verdict. 


ALLNUTT  V.   INGLIS. 
King's  Bench,  1810. 

[12  East,  527.] 

Lord  Ellenborough,  C.  J.^  The  question  on  this  record  is  whether 
the  London  Dock  Compan}'  have  a  right  to  insist  upon  receiving  wines 
into  their  warehouses  for  a  hire  and  reward  arbitrary'  and  at  their  will 
and  pleasure,  or  whether  thev  were  bound  to  receive  them  there  for  a 
reasonable  reward  only.  There  is  no  doubt  tliat  the  general  principle 
is  favored  both  in  law  and  justice,  that  every  man  may  fix  what  price  he 
pleases  upon  his  own  property  or  the  use  of  it :  but  if,  for  a  particular 
purpose,  the  public  have  a  right  to  resort  to  his  premises  and  make  use 
of  them,  and  he  have  a  monopol3'  in  them  for  that  purpose,  if  he  will 

1  "  Because  he  has  made  profession  of  a  trade  wliich  i.s  for  the  public  good,  and  has 
thereby  exposed  and  vested  an  intere.tt  of  himself  in  all  tiie  king's  subjects  that  will  em- 
ploy him  in  the  way  of  his  trade."'     Holt.  C  J.,  in  Lane  r.  Cotton,  12  Mod.  484.  —  Ed. 

'^  Tliis  ()]iinion  only  is  given  ;  it  sufficiently  states  tlie  case. —  Ed. 


ALLNUTT   V.    INGLIS.  37 

take  the  benefit  of  that  monopoly,  he  must  as  an  equivalent  perform  the 
duty  attached  to  it  on  reasonable  terms.  The  question  then  is,  whether 
circumstanced  as  this  company  is  b}-  the  combination  of  the  warehous- 
ing act  with  the  act  by  which  they  were  originally  constituted,  and  with 
the  actually  existing  state  of  things  in  the  port  of  London,  whereby  they 
alone  have  the  warehousing  of  these  wines,  they  be  not,  according  to 
the  doctrine  of  Lord  Hale,  obliged  to  limit  themselves  to  a  reasonable 
compensation  for  such  warehousing?  And  according  to  him,  wherever 
the  accident  of  time  casts  upon  a  party  the  benefit  of  having  a  legal 
monopoly  of  landing  goods  in  a  public  port,  as  where  he  is  the  owner 
of  the  only  wharf  authorized  to  receive  goods  which  happens  to  be 
built  in  a  port  newly  erected,  he  is  confined  to  take  reasonable  com- 
pensation onl}'  for  the  use  of  the  wharf.  Lord  Hale  puts  the  case  either 
wa}- ;  where  the  king  or  a  subject  have  a  public  wharf  to  which  all 
persons  must  come  who  come  to  that  port  to  unlade  their  goods,  either- 
"•  because  they  are  the  wharfs  only  licensed  by  the  queen,  or  because 
there  is  no  other  wharf  in  that  port,  as  it  may  fall  out :  in  that  case 
(he  says)  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  &c.  :  neither  can  they  be  enhanced  to  an  immoderate 
rate  ;  but  the  duties  must  be  reasonable  and  moderate,  though  settled 
b}'  the  king's  license  or  charter."  And  then  he  assigns  this  reason,  "  for 
now  the  wharf  and  crane  and  other  conveniences  are  affected  with  a 
jjublic  interest,  and  the}'  cease  to  be  juris  privati  only."  Then  were  the 
company's  warehouses  juris  privati  only  at  this  time?  The  legislature 
had  said  that  these  goods  should  onh'  be  warehoused  there  ;  and  the  act 
was  passed  not  merel}-  for  the  benefit  of  the  compan}-,  but  for  the  good 
of  trade.  The  first  clause  (43  G.  3,  c.  132,  the  general  warehousing- 
act)  says  that  it  would  greatl}'  tend  to  the  encouragement  of  the  trade 
and  commerce  of  G.  B.,  and  to  the  accommodation  of  merchants  and 
others,  if  certain  goods  were  permitted  to  be  entered  and  landed  and 
secured  in  the  port  of  London  without  payment  of  duties  at  the  time 
of  the  first  entr}- :  and  then  it  says  that  it  shall  be  lawful  for  the  im- 
porter of  certain  goods  enumerated  in  table  A.  to  secure  the  same  in 
the  West  India  dock  warehouses  :  and  then  by  s.  2  other  goods  enumer- 
ated in  table  B.  may  in  like  manner  be  secured  in  the  London  dock 
warehouses.  And  there  are  no  other  places  at  present  lawfully  autlior- 
ized  for  the  warehousing  of  wines  (such  as  were  imported  in  this  case) 
except  these  warehouses  within  the  London  dock  premises,  or  such 
others  as  are  in  the  hands  of  this  company.  But  if  those  other  ware- 
houses were  licensed  in  other  hands,  it  would  not  cease  to  be  a  monopoly 
of  the  privilege  of  bonding  there,  if  the  right  of  the  public  were  still 
narrowed  and  restricted  to  bond  their  goods  in  those  particular  ware- 
houses, though  the}'  might  be  in  the  hands  of  one  or  two  others  besides 
the  company's.  Here  then  the  comi)any's  warehouses  were  invested 
with  the  monopoly  of  a  public  privilege,  and  therefore  they  must  by  law 
confine  themselves  to  take  reasonable  rates  for  the  use  of  them  for  that 
purpose.  If  the  crown  should  hereafter  think  it  advisable  to  extend 
the  privilege  niore  generally  to  other  persons  and  places,  so  far  as  that 


38  LAWEENCE   V.   PULLMAN    PALACE    CAR   CO. 

the  public  will  not  be  restrained  from  exercising  a  choice  of  ware- 
houses for  the  purpose,  the  company  may  be  enfranchised  from  the  re- 
striction which  attaches  upon  a  monopolj :  but  at  present,  while  the 
public  are  so  restricted  to  warehouse  their  goods  with  them  for  the 
purpose  of  bonding,  they  must  submit  to  that  restriction ;  and  it  is 
enough  that  there  exists  in  the  place  and  for  the  commodity  in  question 
a  virtual  monopoly  of  the  warehousing  for  this  purpose,  on  which  the 
principle  of  law  attaches,  as  laid  down  b}-  Lord  Hale  in  the  passage 
referred  to,  which  includes  the  good  sense  as  well  as  the  law  of  the 
subject.  Whether  the  company  be  bound  to  continue  to  apply  their 
warehouses  to  this  purpose  may  b'e  a  nice  question,  and  I  will  not  say 
to  what  extent  it  ma}'  go  ;  but  as  long  as  their  warehouses  are  the  only 
places  which  can  be  resorted  to  for  this  purpose,  they  are  bound  to  let 
the  trade  have  the  use  of  them  for  a  reasonable  hire  and  reward.^ 


LAWRENCE   v.    PULLMAN    PALACE   CAR   CO. 
Supreme  Judicial  Court  of  Massachusetts,  1887. 

[144  Mass.  1.] 

Devens,  J."  The  gist  of  the  iilaintiff's  claim  is  that  he  was  wrong- 
fully refused  accommodation  in  the  sleeping  car  of  the  defendant,  in 
coming  from  Baltimore  to  New  Yoik,  by  the  defendant's  servants  ;  and 
that,  on  declining  to  leave  the  car,  he  was  ejected  therefrom.  His 
argument  assumes  that  it  was  for  the  defendant  to  determine  under 
what  circumstances  a  passenger  should  be  allowed  to  purchase  a  berth, 
and,  incidentally,  the  other  accommodations  afforded  by  the  sleeping 
car.  An  examination  of  the  contract  with  the  Pennsylvania  Railroad 
Compan}',  by  virtue  of  which  the  cars  owned  by  the  defendant  were 
conveyed  over  its  railroad,  shows  that,  while  these  cars  were  to  be  fur- 
nished by  the  defendant  corporation,  they  were  so  furnished  to  be  used 
by  tlie  railroad  company  "  for  the  transportation  of  passengers  ;  "  that 
its  employees  were  to  be  governed  by  the  rules  and  regulations  of  the 
railroad  company,  such  as  it  might  adopt,  from  time  to  time,  for  the 
government  of  its  own  employees.  While,  therefore,  the  defendant 
company  was  to  collect  the  fares  for  the  accommodations  furnished  by 
its  cars,  keep  them  in  proper  order,  and  attend  upon  the  passengers,  it 
was  for  the  railroad  company  to  determine  who  should  be  entitled  to 
enjoy  the  accommodations  of  these  cars,  and  by  what  regulation  this 
use  of  the  cars  should  be  governed.  The  defendant  company  could  not 
certainly  furnish  a  berth  in  its  cars  until  the  person  requesting  it  had 
become  entitled  to  transportation  by  the  railroad  company  as  a  pas-, 
senger,  and  he  must  also  be  entitled  to  the  transportation  for  such 
routes,  distances,  or  under  such  circumstances,  as  the  railroad  company 

1  Grose,  Le  Blanc,  and  Batlet,  JJ.,  delivered  concurring  opinions.  —  Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


LAWRENCE   V.   PULLMAN   PALACE   CAR   CO,  39 

should  determine  to  be  those  under  which  the  defendant  company  would 
be  authorized  to  furnish  him  with  its  accommodations.  The  defendant 
company  could  only  contract  with  a  passenger  when  he  was  of  such  a 
class  that  the  railroad  companN'  permitted  the  contract  to  be  made. 

The  railroad  company-  had  classified  its  trains,  fixing  tlie  terms  upon 
wiiich  persons  should  become  entitled  to  transportation  in  the  sleeping 
cars,  and  the  cars  in  which  such  transportation  would  be  afforded.  It 
was  its  regulation  that,  between  Baltimore  and  New  York  this  accom- 
modation should  only  be  furnished  to  those  holding  a  ticket  over  the 
whole  route.  It  does  not  appear  that  this  was  an  unreasonable  rule, 
but,  whether  it  was  so  or  not,  it  was  the  regulation  of  the  railroad  com- 
pany, and  not  of  the  defendant.  The  evidence  was,  "  that  the  ordinar}- 
train  conductors  of  the  Pennsylvania  Railroad  Compan}'  have  full  and 
entire  authority  over  the  porters  and  conductors  of  the  Pullman  cars, 
in  regard  to  the  matter  of  determining  who  shall  ride  in  the  cars,  and 
under  what  circumstances,  and  in  regard  to  every  other  thing,  except " 
the  details  of  care,  etc.  The  defendant's  servant,  the  plaintiff  having 
entered  the  sleeping  car,  informed  him  that  his  "  split  tickets,"  as  they 
are  termed,  were  not  such  as  would  entitle  him  to  purchase  a  berth, 
and  that  he  could  sell  onl}-  to  those  holding  "  through  passage  tickets, 
intact,  to  the  point  to  which  sleeping  accommodations  were  desired." 
The  plaintiff  was  in  no  wa}'  disturbed  until  the  train  conductor  (who 
was  not  the  defendant's  servant)  came  into  the  car,  informed  the  plain- 
tiff that  his  tickets  were  not  such  as  to  entitle  hini  to  purchase  the 
sleeping-car  ticket,  and  several  times  urged  the  plaintiff  to  leave  the 
sleeping  car,  which  the  plaintiff  refused  to  do.  Whether  accommoda- 
tion was  rightly  refused  to  the  plaintifT  or  not  in  the  sleeping  car,  the 
refusal  was  the  act  of  the  railroad  company's  servant,  and  not  of  the 
defendant's,  whose  duty  it  was  to  be  guided  by  the  train  conductor. 

The  ejection  of  the  plaintiff  was  also  the  act  of  the  railroad  company, 
and  not  of  the  defendant.  It  is  the  contention  of  the  plaintiff  that, 
even  if  he  might  be  ejected  from  the  car,  it  was  done  in  an  improper 
manner.  The  plaintiff  testified  that  he  was  waiting  for  a  "sliow  of 
force,"  after  his  repeated  refusals  to  leave  the  car.  This  exhiliition  of 
force  was  made  by  the  train  conductor,  wlio  put  his  hand  upon  him, 
when  the  plaintifT  rose  and  yielded  tliereto.  The  defendant's  conductor 
took  hold  of  the  plaintiff's  arm  when  he  rose,  and  aided  the  plaintifi'  in 
crossing  the  platform  of  the  cars,  but  the  evidence  does  not  show  that 
he  used  or  exercised  an}'  force  whatever.  Even  if  he  had  used  force 
upon  the  plaintiff",  he  was  not  doing  the  business  of  the  defendant  com- 
pany ;  he  was  assisting  the  train  conductor  in  the  duty  he  was  perform- 
ing as  servant  of  the  railroad  company-.  To  conduct  him  across  from 
one  car  to  another  in  the  manner  described  b}'  the  plaintiff  himself,  after 
he  had  repeatedly  refused  to  leave  the  car,  affords  no  evidence  of  any 
removal  in  an  improper  manner.  The  act  of  the  defendant's  servant 
was  in  every  way  calculated  to  assist  the  plaintiff  in  his  transit  from 
one  car  to  another. 

Nor  is  the  fact  important  that  the  car  into  which  the  plaintiff  was 


40        CHESAPEAKE    AND   POT.    TEL.    CO.    V.    BAL.    AND    OHIO    TEL.    CO. 

passed  subsequently  became  cold,  even  if  it  were  possible  to  hold  the 
defendant  responsible  for  the  act  of  its  servant.  S<3  far  as  appears  by 
the  evidence,  there  is  no  reason  to  believe  that,  when  the  plaintiff  en- 
tered the  car,  it  was  not  in  fit  condition  to  receive  passengers  ;  and,  by 
the  contract,  the  management  of  it  and  the  duty  of  furnishing  fuel  were 
entirel}^  with  the  railroad  company-,  and  not  with  the  defendant. 

Judgment  on  the  verdict.^ 


CHESAPEAKE  AND  POTOMAC  TELEPHONE  CO.  v.   BAL- 
TIMORE AND  OHIO  TELEGRAPH  CO. 

Court  of  Appeals,  Maryland,  1887. 

[66  Man/land,  399.] 

Alvey,  C.  J."  This  was  an  application  b}-  the  appellee,  a  telegraph 
company,  to  the  Court  below  for  a  mandamus,  which  was  accordingly 
ordered,  against  the  appellant,  another  telegraph  company',  but  doing 
a  general  telephone  business. 

The  appellant  appears  to  be  an  auxiliary  companj-,  operating  the 
Telephone  Exchange  under  the  patents  known  as  the  Bell  patents. 
Those  patents,  formerly  held  by  the  National  Bell  Telephone  Com- 
pan}',  are  now  held  by  the  American  Bell  Telephone  Company,  a  cor- 
poration created  under  the  lavy  of  the  State  of  Massachusetts.  The 
patents,  with  the  contracts  relating  thereto,  were  assigned  by  the 
former  to  the  latter  compan}-,  prior  to  the  23rd  of  Ma}-,  1882,  and  it 
is  under  a  contract,  of  the  date  just  mentioned,  that  the  appellant 
acquired  a  right  to  use  the  patented  devices  in  the  operation  of  its 
system  of  telephonic  exchanges. 

In  the  agreed  statement  of  facts,  it  is  admitted  that  all  the  tele- 
phones used  by  the  Chesapeake  and  Potomac  Telephone  Company  (a 
conn)any  to  which  the  appellant  is  an  auxiliarj'  organization),  and  also 
all  the  telephones  used  by  the  appellant  in  its  Exchange  in  the  City  of 
Baltimore,  and  elsewhere  in  the  State,  are  the  property  of  the  Ameri- 
can Bell  Telephone  Company.  It  is  alleged  by  the  appellee  and 
admitted  b}'  the  appellant,  that  the  offices  of  the  Western  Union  Tele- 
graph Company  of  Baltimore  City  are  connected  with  the  Telephone 
Exchange  of  the  a|)pellant,  and  that  when  a  subscriber  to  the  Tele- 
phone Exchange  wishes  to  send  a  message  b}'  way  of  the  lines  of  the 
Western  Union  Telegraph  Company-,  the  subscriber  calls  up  the  Tele- 
phone Exchange,  and  the  agent  there  connects  him  with  the  office  of 
the  Western  Union  Telegraph  Company,  and  the  subscriber  thereupon 
telephones  his  message  over  the  lines  of  the  appellant,  to  the  Western 
Union  Telegraph  office  ;  and  a  like  process  is  repeated  when  a  message 
is  received  by  the  Western  Union  Telegraph  Company  for  a  subscriber 
to  the  Telephone.  Exchange  of  the  appellant.     The  appellee  is  a  com- 

1  See  Nevin  v.  P.  P.  C.ir  Co.,  106  111.  222  ;  Searles  v.  Car  Co.,  45  Fed.  330.  — Ed. 

2  Part  of  tlie  opinion  only  is  given.  —  Ed. 


CHESAPEAKE    AND    POT.    TEL.    CO.    V.   BAL.    AND    OHIO   TEL.    CO.      41 

peting  companj',  in  the  general  telegraph  business,  with  the  Western 
Union  Telegraph  Compan}'.  And  being  such,  it  made  application  to 
the  appellant  to  have  a  telephone  instrument  placed  in  its  receiving- 
room  in  Baltimore,  and  that  the  same  might  be  connected  with  ihe 
Central  Exchange  of  the  appellant  in  that  city  ;  so  that  the  appellee 
miglit  be  placed  upon  the  same  and  equal  footing  with  the  ^\'estern 
Union  Telegraph  Company,  in  conducting  its  business.  This  request 
was  refused,  unless  the  connection  be  accepted  under  certain  condi- 
tions and  restrictions,  to  be  specially  embodied  in  a  contract  between 
the  two  companies,  and  which  conditions  and  restrictions  do  not  apply 
in  the  case  of  the  Western  Union  Telegraph  Company. 

It  appears  that  there  were  conflicting  claims  existing  as  to  priority 
of  invention,  and  alleged  infringement  of  patent  rights,  which  were 
involved  in  a  controversy  between  the  Western  Union  Telegraph  Com- 
pan}-  and  others,  and  the  National  Bell  Telephone  Compan}',  to  whose 
rights  the  American  13ell  Telephone  Company  succeeded  ;  and  in  order 
to  adjust  those  conflicting  pretensions,  the  contract  of  the  10th  of  Nov., 
1879,  was  entered  into  b}'  the  several  parties  concerned.  The  contract 
is  ver}-  elaborate,  and  contains  a  great  varietv  of  provisions.  By  this 
agreement,  with  certain  exceptions,  the  National  Bell  Telephone  Com- 
pany was  to  acquire  and  become  owner  of  all  the  patents  relating  to 
telephones,  or  patents  for  the  transmission  of  articulate  speech  b}' 
means  of  electricity.  But  while  it  was  expressly'  stipulated  (Art.  13, 
cl.  1)  that  the  right  to  connect  district  or  exchange  systems,  and  the 
right  to  use  telephones  on  all  lines,  should  remain  exclusively  with  the 
National  Bell  Telephone  Com[)any  (subsequenth'  the  American  Bell 
Telephone  Company),  and  those  licensed  by  it  for  the  purpose,  it  was 
in  terms  provided  that  "  such  connecting  and  other  lines  are  not  to 
be  used  for  the  transmission  of  general  business  messages,  market 
quotations,  or  news,  for  sale  or  publication,  in  competition  xoitli  the 
buHinexs  of  the  Western  Union  Telegraph  Company,  or  with  that  of 
the  Gold  and  Stock  Telegraph  Company.  And  the  part}'  of  the  sec- 
ond part  [National  Bell  Teleph.  Co.],  so  far  as  it  Icnqfalh/  and  pro})- 
erhj  can  p)revent  it,  will  not  permit  the  transmission  of  such  general 
business  messages,  market  quotations,  or  news,  for  sale  or  publication, 
over  lines  owned  by  it,  or  by  corporations  in  which  it  owns  a  controll- 
ing interest,  nor  license  the  use  of  its  telephones,  or  patents,  for  the 
transmission  of  such  general  business  messages,  market  quotations,  or 
news,  for  sale  or  publication,  in  competition  vnth  such  telegraph  busi- 
ness of  the  Western  Union  Telegraph  Companv,  or  that  of  the  Gold 
and  Stock  Telegraph  Company."  The  contract  of  the  23rd  of  INlay, 
1882,  under  which  the  appellant  derives  its  right  to  the  use  of  the 
patented  instruments,  was  made  in  subordination  to  the  prior  contract 
of  the  10th  of  Nov.,  1879,  and  contains  a  provision  to  conform  to  the 
restrictions  and  conditions  just  quoted.  In  that  subordinate  contract 
it  is  provided  that  "  no  telegraph  com[)an3-,  unless  specially  permitted 
by  the  licensor,  can  be  a  subscriber,  or  use  the  system  to  collect  and 
deliver  messages  from  and  to  its  customers,"  &c. 


42       CHESAPEAKE  AND   POT.   TEL.   CO.   V.   BAL.   AND   OHIO   TEL.   CO. 

These  contracts  are  pleaded  and  relied  on  by  the  appellant  as  afford- 
ing a  full  justification  for  exacting  from  the  appellee  a  condition  in  the 
contract  of  subscription  to  the  Exchange,  that  the  latter  should  observe 
the  restrictions  in  favor  of  the  Western  Union  Telegraph  Companj'. 
The  appellant  contends  that  these  restrictive  conditions  in  the  con- 
tracts recited  are  binding  upon  it,  and  that  it  is  not  at  liberty  to  furnish 
to  the  appellant,  being  a  telegraph  company,  the  instruments  applied 
for  and  place  them  in  connection  with  the  Exchange,  unless  it  be  sub- 
ject to  the  restrictive  conditions  prescribed.  And  if  this  be  so,  the 
Court  below  was  in  error  in  ordering  the  mandamus  to  issue.  But  is 
the  contention  of  the  appellant  well  founded,  in  view  of  the  nature  of 
the  service  that  it  has  undertaken  to  perform  ? 

The  appellant  is  in  the  exercise  of  a  public  employment,  and  has 
assumed  the  duty  of  serving  the  public  while  in  that  employment.  In 
this  case,  the  appellant  is  an  incorporated  bod}',  but  it  makes  no  differ- 
ence whether  the  party  owning  and  operating  a  telegraph  line  or  a  tele- 
phone exchange  be  a  corporation  or  an  individual,  the  duty  imposed, 
in  respect  to  the  public,  is  the  same.  It  is  the  nature  of  the  service 
undertaken  to  be  performed  that  creates  the  dut}-  to  the  public,  and  in 
which  the  public  have  an  interest,  and  not  simply  the  body  that  may 
be  invested  with  powei*.  The  telegraph  and  telephone  are  important 
instruments  of  commerce,  and  their  service  as  such  has  become  indis- 
pensable to  the  commercial  and  business  public.  The}'  are  public 
vehicles  of  intelligence,  and  they  who  own  or  control  them  can  no  more 
refuse  to  perform  impartially  the  functions  that  they  have  assumed  to 
discharge,  than  a  railway  company,  as  a  common  carrier,  can  rightfully 
refuse  to  perform  its  duty  to  the  public.  They  may  make  and  estab- 
lish all  reasonable  and  proper  rules  and  regulations  for  the  government 
of  their  offices  and  those  who  deal  with  them,  but  they  have  no  power 
to  discriminate,  and  while  offering  ready  to  serve  some,  refuse  to  serve 
others.  The  law  requires  them  to  be  impartial,  and  to  serve  all  alike, 
upon  compliance  with  their  reasonable  rules  and  regulations.  This  the 
statute  expressly  requires  in  respect  to  telegraph  lines,  and,  as  we  have 
seen,  the  same  provision  is  made  applicable  to  telephone  lines  and 
exchanges.  The  law  declares  that  it  shall  be  the  duty  of  any  person 
or  corporation  owning  and  operating  any  telegraph  line  within  this 
State  (which,  as  we  have  seen,  includes  a  telephone  exchange)  "to 
receive  dispatches  from  and  for  any  telegraph  lines,  associations,  or 
companies,  and  from  and  for  any  individual,"  and  to  transmit  the 
same  in  the  manner  established  by  the  rules  and  regulations  of  the 
office,  "  and  in  the  order  in  which  they  are  received,  with  impartiality 
and  good  faith."  And  such  being  the  plain  duty  of  those  owning  or 
operating  telegraph  lines,  or  telephone  lines  and  exchanges,  within  this 
State,  they  cannot  be  exonerated  from  the  performance  of  that  duty, 
by  any  conditions  or  restrictions  imposed  by  contract  with  the  owner 
of  the  invention  applied  in  the  exercise  of  the  employment.  The  duty 
prescribed  by  law  is  paramount  to  that  prescribed  by  contract. 

Nor  can  it  be  any  longer  controverted  that  the  Legislature  of  the 


PEOPLE   V.   BUDD.  43 

State  has  full  power  to  regulate  and  control,  within  reasonable  limits 
at  least,  public  employments  and  property  used  in  connection  there- 
with. As  we  have  said,  the  telegraph  and  telephone  both  being  instru- 
ments in  constant  use  in  conducting  the  commerce,  and  the  affairs, 
both  public  and  private,  of  the  country-,  their  operation,  tlierefore,  in 
doing  a  general  business,  is  a  public  emplo3-ment,  and  the  instruments 
and  appliances  used  are  property  devoted  to  public  use,  and  in  which 
the  public  have  an  interest.  And  such  being  the  case,  the  owner  of 
tlie  propert}'  thus  devoted  to  public  use,  must  submit  to  have  that  use 
and  employment  regulated  by  public  authority  for  the  common  good. 
This  is  the  principle  settled  b}^  the  case  of  Mann  vs.  Illinois,  94  U.  8., 
113,  and  which  has  been  followed  by  subsequent  cases.  In  the  recent 
case  of  Hockett  vs.  State.,  105  Ind.,  250,  where  the  cases  upon  this 
subject  are  largely  collected,  it  was  held,  applying  the  principle  of 
Munn  vs.  Illinois,  that  it  was  competent  to  the  State  to  limit  the  price 
which  telephone  companies  might  charge  for  their  patented  facilities 
afforded  to  their  customers.  And  if  the  price  of  the  service  can  be 
lawfully  regulated  by  State  authorit}',  there  is  no  perceptible  reason  ibr 
denying  such  authorit}'  for  the  regulation  of  the  service  as  to  the  par- 
ties to  whom  facilities  should  be  furnished.^ 


PEOPLE   V.  BUDD. 

Court  of  Appeals,  New  York,  1889. 

[117  N.  Y.l:  22  N.  E.  670.] 

Andrews,  J.'^  The  main  question  upon  this  record  is  whether  the 
legislation  fixing  the  maximum  charge  for  elevating  grain,  contained 
in  the  act  (chapter  581,  Laws  1888),  is  valid  and  constitutional. 
The  act,  in  its  first  section,  fixes  the  maximum  charge  for  receiving, 
weighing,  and  discharging  grain  by  means  of  floating  and  stationary 
elevators  and  warehouses  in  this  state  at  five-eighths  of  one  cent  a 
bushel,  and  for  trimming  and  shoveling  to  the  leg  of  the  elevator, 
in  the  process  of  handling  grain  by  means  of  elevators,  "  lake  ves- 
sels, or  propellers,  the  ocean  vessels  or  steamships,  and  canal  boats," 
shall,  the  section  declares,  only  be  required  to  pay  the  actual  cost. 
The  second  section  makes  a  violation  of  the  act  a  misdemeanor, 
punishable  by  fine  of  not  less  than  8250.  The  third  section  gives  a 
civil  remedy  to  a  party  injured  by  a  violation  of  the  act.  The  fourth 
section  excludes  from  the  operation  of  the  act  any  village,  town, 
or  city  having  less  than    130,000  population.      The  defendant,  the 

1  See  to  the  same  effect  State  v.  Telephone  Co.,  23  Fed.  5.39  ;  Delaware,  &c.  Tel. 
Co.  V.  State,  50  Fed.  677  ;  Hockett  v.  State,  105  Ind.  250  ;  Telephone  Co.  v.  Bradbury, 
106  Ind.  1  ;  Telephone  Co.  v.  Falley,  118  Ind.  194  ;  19  N.  E.  604  ;  Louisville  Transfer 
Co.  V.  Tel.  Co.,  1  Ky.  Law  J.  144  ;  State  v.  Tel.  Co.,  17  Neb.  126;  State  v.  Tel.  Co., 
36  Oh.  St.  296  ;  Befl  Tel.  Co.  i'.  Com.  (Pa.),  3  Atl.  825  ;  Tel.  Co.  v.  Tel.  Co.,  61  Vt. 
241, 17  Atl.  1071.     But  see  Tel.  Co.  v.  Tel.  Co.,  49  Conn.  352.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


44  PEOPLE   V.   BUDD. 

manager  of  a  stationary  elevator  in  the  city  of  Buffalo,  on  the  19th 
day  of  September,  1888,  exacted  from  the  Lehigh  Valley  Transpor- 
tation Company,  for  elevating,  raising,  and  discharging  a  cargo  of 
corn  from  a  lake  propeller  at  his  elevator,  the  sum  of  one  cent  a 
bushel,  and  for  shoveling  to  the  leg  of  the  elevator  the  carrier  was 
charged  and  compelled  to  pay  ^4  for  each  thousand  bushels.  The 
shoveling  of  grain  to  the  leg  of  an  elevator  at  the  port  of  Buffalo  is 
now  performed,  pursuant  to  an  arrangement  made  since  the  passage 
of  the  act  of  1888,  by  a  body  of  men  known  as  the  Shovelers'  Union, 
who  pay  the  elevator  $1.75  a  thousand  bushels  for  the  use  of  the 
steam-shovel,  a  part  of  the  machinery  connected  with  the  elevator, 
operated  by  steam,  and  who  for  their  services,  and  the  expense  of  the 
steam-shovel,  charge  the  carrier  for  each  thousand  bushels  of  grain 
shoveled  the  sum  of  $4.  The  defendant  was  indicted  for  a  violation 
of  the  act  of  1888.  The  indictment  contains  a  single  count,  charging 
a  violation  of  the  first  section  in  two  particulars,  viz.,  in  exacting 
more  than  the  statute  rate  for  elevating  the  cargo,  and  exacting  more 
than  the  actual  cost  for  shoveling  the  grain  to  the  leg  of  the 
elevator.   .   .   . 

The  question  is  whether  the  power  of  the  legislature  to  regulate 
charges  for  the  use  of  property,  and  the  rendition  of  services  con- 
nected with  it,  depend  in  every  case  upon  the  circumstance  that  the 
owner  of  the  property  has  a  legal  monopoly  or  privilege  to  use  the 
property  for  the  particular  purpose,  or  has  some  special  protection 
from  the  government,  or  some  peculiar  benefit  in  the  prosecution  of 
his  business.  Lord  Hale,  in  the  treatises  De  Portibus  Maris  and 
De  Jure  Maris,  so  largely  quoted  from  in  the  opinions  in  the  Munn 
Case,^  used  the  language  that  when  private  property  is  "  affected 
with  a  public  interest  it  ceases  to  be  juris  privati  only,"  in  assign- 
ing the  reason  why  ferries  and  public  wharves  should  be  under  public 
regulation,  and  only  reasonable  tolls  charged.  The  right  to  establish 
a  ferry  was  a  franchise,  and  no  man  could  set  up  a  ferry,  although 
he  owned  the  soil  and  landing  places  on  both  sides  of  the  stream, 
without  a  charter  from  the  king,  or  a  prescription  time  out  of  mind. 
The  franchise  to  establish  ferries  was  a  royal  prerogative,  and  the 
grant  of  the  king  was  necessary  to  authorize  a  subject  to  establish  a 
public  ferr}'^,  even  on  his  own  premises.  When  we  recur  to  the 
origin  and  purpose  of  this  prerogative,  it  will  be  seen  that  it  was 
vested  in  the  king  as  a  means  by  which  a  business  in  which  the  whole 
community  were  interested  could  be  regulated.  In  other  words,  it 
was  simply  one  mode  of  exercising  a  prerogative  of  government  — 
that  is  to  say,  through  the  sovereign  instead  of  through  Parliament 
—  in  a  matter  of  public  concern.  This  and  similar  prerogatives  were 
vested  in  the  king  for  public  purposes,  and  not  for  his  private  ad- 
vantage or  emolument.  Lord  Kenyon  in  Rorke  v.  Dayrell,  4  Term 
B.  410,  said:  "  The  prerogatives  [of  the  crown]  are  not  given  for  the 

1  Munu  V.  Illinois,  94  U.  S.  115:'  —Ed. 


PEOPLE    V.   BUDD.  45 

personal  advantage  of  the  king,  but  they  are  allowed  to  exist  because 
they  are  beneficial  to  the  subject;  "  and  it  is  said  in  Chitty  on  Prerog- 
atives (page  4) :  "  The  splendor,  rights,  and  power  of  the  crown 
were  attached  to  it  for  the  benefit  of  the  people,  and  not  for  the  pri- 
vate gratification  of  the  subject."  And  Lord  Hale,  in  one  of  the 
passages  referred  to,  in  stating  the  reason  why  a  man  may  not  set  up 
a  ferry  without  a  charter  from  the  king,  says:  "Because  it  doth  in 
consequence  tend  to  a  common  charge,  and  is  become  a  thing  of 
public  interest  and  use,  and  every  man  for  his  passage  pays  a  toll 
which  is  a  common  charge,  and  every  ferry  ought  to  be  under  a 
public  regulation."  The  right  to  take  tolls  for  wharfage  in  a  public 
port  was  also  a  franchise,  and  tolls,  as  Lord  Hale  says,  could  not  be 
taken  without  lawful  title  by  charter  or  prescription.  De  Port.  Mar. 
77.  But  the  king,  if  he  maintained  a  public  wharf,  was  under  the 
same  obligation  as  a  subject  to  exact  only  reasonable  tolls,  nor  could 
the  king  authorize  unreasonable  tolls  to  be  taken  by  a  subject. 
The  language  of  Lord  Hale  is  explicit  upon  both  these  points:  "  If 
the  king  or  subject  have  a  public  wharf  into  which  all  persons  that 
come  to  that  port  must  come  to  unload  their  goods,  as  for  the  pur- 
pose, because  they  are  the  wharves  only  licensed  by  the  queen, 
according  to  the  statute  of  1  Eliz.  c.  11,  or  because  there  is  no  other 
wharf  in  that  port,  as  it  may  fall  out  when  a  port  is  newly  erected, 
in  that  case  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  passage,  etc.  Neither  can  the}^  be  enhanced  to 
an  immoderate  degree,  but  the  duties  must  be  reasonable  and  moder- 
ate, though  settled  by  the  king's  license  or  charter." 

The  contention  that  the  right  to  regulate  the  charges  of  ferrymen  or 
wharfingers  was  founded  on  the  fact  that  tolls  could  not  be  taken 
without  the  king's  license  does  not  seem  to  us  to  be  sound.  It 
rested  on  the  broader  basis  of  public  interest,  and  the  license  was  the 
method  by  which  persons  exercising  these  functions  were  subjected 
to  governmental  supervision.  The  king,  in  whom  the  franchise  of 
wharfage  was  vested  as  a  royal  prerogative,  was  himself,  as  has  been 
shown,  subject  to  the  same  rule  as  the  subject,  and  could  onh'  exact 
reasonable  wharfage,  nor  could  he  by  express  license  authorize  the 
taking  of  more.  The  language  of  Lord  Hale,  that  private  property 
may  be  affected  by  a  public  interest,  cannot  justly,  we  think,  be 
restricted  as  meaning  only  property  clothed  with  a  public  character 
by  special  grant  or  charter  of  the  sovereign.  The  control  which  by 
common  law  and  by  statute  is  exercised  over  common  carriers  is 
conclusive  upon  the  point  that  the  right  of  the  legislature  to  regu- 
late the  charges  for  services  in  connection  with  the  use  of  property 
does  not  in  every  case  depend  upon  the  question  of  legal  monopoly. 
From  the  earliest  period  of  the  common  law  it  has  been  held  that 
common  carriers  were  bound  to  carry  for  a  reasonable  compensation. 
They  were  not  at  liberty  to  charge  whatever  sum  they  pleased,  and, 
even  where  the  price  of  carriage  was  fixed  by  the  contract  or  conven- 
tion of  the  parties,  the  c-^atract  was  not  enforceable  beyond  the  point 


46  PEOPLE   V.    BUDD. 

of  reasonable  compensation.  From  time  to  time  statutes  have  been 
enacted  in  England  and  in  this  country  fixing  the  sum  which  should 
be  charged  by  carriers  for  the  transportation  of  passengers  and  prop- 
erty, and  the  validit}'  of  such  legislation  has  not  been  questioned. 
But  the  business  of  common  carriers  until  recent  times  was  conducted 
almost  exclusively  by  individuals  for  private  emolument,  and  was  open 
to  every  one  who  chose  to  engage  in  it.  The  state  conferred  no  fran- 
chise, and  extended  to  common  carriers  no  benefit  or  protection, 
except  that  general  protection  which  the  law  affords  to  all  persons 
and  property  within  its  jurisdiction.  The  extraordinary  obligations 
imposed  upon  carriers,  and  the  subjection  of  the  business  to  public 
regulation,  were  based  on  the  character  of  the  business;  or,  in  the 
language  of  Sir  William  Jones,  upon  the  consideration  "  that  the 
calling  is  a  public  employment."  Jones,  Bailm.  App.  It  is  only 
a  public  employment  in  the  sense  of  the  language  of  Lord  Hale, 
that  it  was  "  affected  with  a  public  interest,"  and  the  imposition  of 
the  character  of  a  public  business  upon  the  business  of  a  common 
carrier  was  made  because  public  policy  was  deemed  to  require  that  it 
should  be  under  public  regulation.  The  principle  of  the  common 
law,  that  common  carriers  must  serve  the  public  for  a  reasonable 
compensation,  became  a  part  of  the  law  of  this  state,  and  from  the 
adoption  of  the  constitution  has  been  part  of  our  municipal  law.  It 
is  competent  for  the  legislature  to  change  the  rule  of  reasonable  com- 
pensation, as  the  matter  was  left  by  the  common  law,  and  prescribe  a 
fixed  and  definite  compensation  for  the  services  of  common  carriers. 
This  principle  was  declared  in  the  Munn  Case,  which  was  cited  with 
approval  on  this  point  in  Sawyer  v.  Davis,  136  Mass.  239.  It  accords 
with  the  language  of  Chief  Justice  Shaw  in  Com.  v.  Alger,  7  Cusb. 
53:  "  Wherever  there  is  a  general  right  on  the  part  of  the  public, 
and  a  general  duty  on  the  part  of  a  land-owner  or  any  other  person 
to  respect  such  right,  we  think  it  is  competent  for  the  legislature, 
by  a  specific  enactment,  to  prescribe  a  precise,  practical  rule  for 
declaring,  establishing,  and  securing  such  right,  and  enforcing 
respect  for  it."  The  practice  of  the  legislature  in  this  and  other 
states  to  prescribe  a  maximum  rate  for  the  transportation  of  persons 
or  property  on  railroads  is  justified  upon  this  principle.  Where  the 
right  of  the  legislature  to  regulate  the  fares  or  charges  on  railroads 
is  received  by  the  charter  of  incorporation,  or  the  charter  was  granted 
subject  to  the  general  right  of  alteration  or  repeal  by  the  legislature, 
the  power  of  the  legislature  in  such  cases  to  prescribe  the  rate  of 
compensation  is  a  part  of  the  contract,  and  the  exercise  of  the  power 
does  not  depend  upon  any  general  legislative  authority  to  regulate 
the  charges  of  common  carriers.  But  the  cases  are  uniform  that 
where  there  is  no  reservation  in  the  charter  the  legislature  may 
nevertheless  interfere,  and  prescribe  or  limit  the  charges  of  railroad 
corporations.  The  Granger  Cases,  94  U.  S.  113;  Dow  v.  Beidelman, 
125  U.  S.  680;  Earl,  J.",  in  People  v.  Railroad  Co.,  70  N.  Y.  569; 
RuGER,  C.  J.,  in  Railroad  Co.  v.  Railroad  Co.,  Ill  N.  Y.  132. 


PEOPLE    V.   BUDD.  47 

The  power  of  regulation  in  these  cases  does  not  turn  upon  the  fact 
that  the  entities  affected  by  the  legiskition  are  corporations  deriving 
their  existence  from  the  state,  but  upon  the  fact  that  the  corporations 
are  common  carriers,  and  therefore  subject  to  legislative  control. 
The  state,  in  constituting  a  corporation,  may  prescribe  or  limit  its 
powers,  and  reserve  such  control  as  it  sees  fit,  and  the  body  accepting 
the  charter  takes  it  subject  to  such  limitations  and  reservations,  and 
is  bound  by  them.  The  considerations  upon  which  a  corporation 
holds  its  franchise  are  the  duties  and  obligations  imposed  by  the  act 
of  incorporation.  But  when  a  corporation  is  created  it  has  the  same 
rights  and  the  same  duties,  within  the  scope  marked  out  for  its 
action,  that  a  natural  person  has.  Its  property  is  secured  to  it  by  the 
same  constitutional  guaranties,  and  in  the  management  of  its  prop- 
erty and  business  is  subject  to  regulation  by  the  legislature  to  the 
same  extent  only  as  natural  persons,  except  as  the  power  may  be 
extended  by  its  charter.  The  mere  fact  of  a  corporate  character 
does  not  extend  the  power  of  legislative  regulation.  For  illustration, 
it  could  not  justly  be  contended  that  the  act  of  1888  would  be  a  valid 
exercise  of  legislative  power  as  to  corporations  organized  for  the  pur- 
pose of  elevating  grain,  although  invalid  as  to  private  persons  con- 
ducting the  same  business.  The  conceded  power  of  legislation  over 
common  carriers  is  adverse  to  the  claim  that  the  police  power  does 
not  in  any  case  include  the  power  to  fix  the  price  of  the  use  of  private 
property,  and  of  services  connected  with  such  use,  unless  there  is  a 
legal  monopol}',  or  special  governmental  privileges  or  protection  have 
been  bestowed.  It  is  said  that  the  control  which  the  legislature  is 
permitted  to  exercise  over  the  business  of  common  carriers  is  a  sur- 
vival of  that  class  of  legislation  which  in  former  times  extended  to 
the  details  of  personal  conduct,  and  assumed  to  regulate  the  private 
affairs  and  business  of  men  in  the  minutest  particulars.  This  is 
true.  But  it  has  survived  because  it  was  entitled  to  survive.  liy 
reason  of  the  changed  conditions  of  society,  and  a  truer  appreciation 
of  the  proper  functions  of  government,  many  things  have  fallen  out  of 
the  range  of  the  police  power  as  formerly  recognized,  the  regulation 
of  which  by  legislation  would  now  be  regarded  as  invading  personal 
liberty.  But  society  could  not  safely  surrender  the  power  to  regulate 
by  law  the  business  of  common  carriers.  Its  value  has  been  infinitely 
increased  by  the  conditions  of  modern  commerce,  under  which  the 
carrying  trade  of  the  country  is,  to  a  great  extent,  absorbed  by  cor- 
porations, and,  as  a  check  upon  the  greed  of  these  consolidated  in- 
terests, the  legislative  power  of  regulation  is  demanded  by  the  most 
imperative  public  interests.  The  same  principle  upon  which  the  con- 
trol of  common  carriers  rests  has  enabled  the  state  to  regulate  in  the 
public  interest  the  charges  of  telephone  and  telegraph  companies,  and 
to  make  the  telephone  and  telegraph,  those  important  agencies  of 
commerce,  subservient  to  the  wants  and  necessities  of  society. 
These  regulations  in  no  way  interfere  with  a  rational  liberty,  — 
liberty  regulated  by  law. 


48  PEOPLE   V.   BUDD. 

There  are  elements  of  publicity  in  the  business  of  elevating  grain 
which  peculiarly  affect  it  with  a  public  interest.  They  are  found  in 
the  nature  and  extent  of  the  business,  its  relation  to  the  commerce 
of  the  state  and  country,  and  the  practical  monopoly  enjoyed  by  those 
engaged  in  it.  The  extent  of  the  business  is  shown  by  the  facts  to 
which  we  have  referred.  A  large  proportion  of  the  surplus  cereals 
of  the  country  passes  through  the  elevators  at  Buffalo,  and  finds  its 
way  through  the  Erie  Canal  and  Hudson  River  to  the  seaboard  at 
New  York,  from  whence  they  are  distributed  to  the  markets  of  the 
world.  The  business  of  elevating  grain  is  an  incident  to  the  busi- 
ness of  transportation.  The  elevators  are  indispensable  instrumen- 
talities in  the  business  of  the  common  carrier.  It  is  scarcely  too 
much  to  say  that,  in  a  broad  sense,  the  elevators  perform  the  work  of 
carriers.  They  are  located  upon  or  adjacent  to  the  waters  of  the  state, 
and  transfer  from  the  lake  vessels  to  the  canal-boats,  or  from  the 
canal-boats  to  the  ocean  vessels,  the  cargo  of  grain,  and  thereby 
perform  an  essential  service  in  transportation.  It  is  by  means  of 
the  elevators  that  transportation  of  grain  by  water  from  the  upper 
lakes  to  the  seaboard  is  rendered  possible.  It  needs  no  argument  to 
show  that  the  business  of  elevating  grain  has  a  vital  relation  to  com- 
merce in  one  of  its  most  important  aspects.  Every  excessive  charge 
made  in  the  course  of  the  transportation  of  grain  is  a  tax  on  com- 
merce, and  the  public  have  a  deep  interest  that  no  exorbitant  charges 
shall  be  exacted  at  any  point  upon  the  business  of  transportation. 
The  state  of  New  York,  in  the  construction  of  the  Erie  Canal,  ex- 
hibited its  profound  appreciation  of  the  public  interest  involved  in 
the  encouragement  of  commerce.  The  legislature  of  the  state,  in 
entering  upon  the  work  of  constructing  a  water-way  between  Lake 
Erie  and  the  Atlantic  Ocean,  sets  forth  in  the  preamble  of  the  orig- 
inating act  of  1817  its  reasons  for  that  great  undertaking.  "  It 
will,"  the  preamble  says,  "promote  agriculture,  manufactures,  and 
commerce,  mitigate  the  calamities  of  war,  and  enhance  the  bless- 
ings of  peace,  consolidate  the  Union,  and  advance  the  prosperity 
and  elevate  the  character  of  the  United  States."  In  the  construction 
and  enlargement  of  the  canal  the  state  has  expended  vast  sums  of 
money,  raised  by  taxation;  and  finally,  to  still  further  promote  the 
interests  of  commerce,  it  has  made  the  canal  a  free  highway,  and 
maintains  it  by  a  direct  tax  upon  the  people  of  the  state.  The  wise 
forecast  and  statesmanship  of  the  projectors  of  this  work  have  been 
amply  demonstrated  by  experience.  It  has  largely  contributed  to  the 
power  and  influence  of  the  state,  promoted  the  prosperitj'  of  the 
people,  and  to  it,  more  perhaps  than  to  any  other  single  cause,  is  it 
owing  that  the  city  of  New  York  has  become  the  commercial  centre 
of  the  Union. 

Whatever  impairs  the  usefulness  of  the  canal  as  a  highway  of  com- 
merce involves  the  public  interest.  The  people  of  New  York  are 
greatly  interested  to  prevent  any  undue  exactions  in  the  business  of 
transportation  which  shall  enhance  the  cost  of  the  necessaries  of  life, 


PEOPLE    V.    BUDD.  49 

or  force  the  trade  in  grain  into  channels  outside  of  our  state.  In 
Hooker  v.  Vandewater,  4  Denio,  349,  the  court  was  called  upon 
to  consider  the  validity  of  an  agreement  between  certain  transporta- 
tion lines  on  the  canal  to  keep  up  the  price  of  freights.  The  court 
held  the  agreement  to  be  illegal,  and  Jewett,  J.,  in  pronouncing  the 
judgment  of  the  court,  said :  "  That  the  raising  of  the  price  of  freights 
for  the  transportation  of  merchandise  or  passengers  upon  our  canals 
is  a  matter  of  public  concern,  and  in  which  the  public  have  a  deep 
interest,  does  not  admit  of  doubt.  It  is  a  familiar  maxim  that  com- 
petition is  the  life  of  trade.  It  follows  that  whatever  destroys,  or 
even  relaxes,  competition  in  trade  is  injurious,  if  not  fatal,  to  it." 
The  same  question  came  up  a  second  time  in  Stanton  v.  Allen,  5 
Denio,  434,  and  was  decided  the  same  way.  In  the  course  of  its 
opinion  the  court  said:  "As  these  canals  are  the  property  of  the 
state,  constructed  at  great  expense,  as  facilities  to  trade  and  com- 
merce, and  to  foster  and  encourage  agriculture,  and  are,  at  the  same 
time,  a  munificent  source  of  revenue,  whatever  concerns  their  emplo}'- 
ment  and  usefulness  deeply  involves  the  interests  of  the  whole  state." 
The  fostering  and  protection  of  commerce  was,  even  in  ancient 
times,  a  favorite  object  of  English  law  (Chit.  Prerog.  162);  and 
this  author  states  that  the  "  superintendence  and  care  of  commerce, 
on  the  success  of  which  so  materially  depends  the  wealth  and  pros- 
perity of  the  nation,  are  in  various  cases  allotted  to  the  king  by  the 
constitution,"  and  many  governmental  powers  vested  in  the  sovereign 
in  England  have  since  our  Revolution  devolved  on  the  legislatures 
of  the  states.  The  statutes  of  England  in  earlier  time  were  full  of 
oppressive  commercial  regulations,  now,  happily,  to  a  great  extent 
abrogated;  but  that  the  interests  of  commerce  are  matters  of  public 
concern  all  states  and  governments  have  fully  recognized. 

The  third  element  of  publicity  which  tends  to  distinguish  the 
business  of  elevating  grain  from  genei-al  commercial  pursuits  is  the 
practical  monopoly  which  is  or  may  be  connected  with  its  prosecu- 
tion. In  the  city  of  Buffalo  the  elevators  are  located  at  the  junction 
of  the  canal  with  Lake  Erie.  The  owners  of  grain  are  compelled  to 
use  them  in  transferring  cargoes.  The  area  upon  which  it  is  practi- 
cable to  erect  them  is  limited.  The  structures  are  expensive,  and  the 
circumstances  afford  great  facility  for  combination  among  the  owners 
of  elevators  to  fix  and  maintain  an  exorbitant  tariff"  of  charges,  and 
to  bring  into  the  combination  any  new  elevator  which  may  be  erected, 
and  employ  it  or  leave  it  unemployed,  but  in  either  case  permit  it  to 
share  in  the  aggregate  earnings.  It  is  evident  that  if  such  a  combi- 
nation in  fact  exists  the  principle  of  free  competition  in  trade  is 
excluded.  The  precise  object  of  the  combination  would  be  to  prevent 
competition.  The  result  of  such  a  combination  would  necessarily  be 
to  subject  the  lake  vessels  and  canal-boats  to  auj'  exaction  which  the 
elevator  owners  might  see  fit  to  impose  for  the  service  of  the  elevator, 
and  the  elevator  owners  would  be  able  to  levy  a  tribute  on  the  com- 
munity, the  extent  of  which  would  be  limited  only  by  their  discretion. 

4 


50  PEOPLE   V.   BUDD. 

It  is  upon  these  various  circumstances  that  the  court  is  called  upon 
to  determine  whether  the  legislature  may  interfere  and  regulate  the 
charges  of  elevators.     It  is  purely  a  question  of  legislative  power. 
If  the  power  to  legislate  exists  the  court  has  nothing  to  do  with  the 
policy  or  wisdom  of  the  interference  in  the  particular  case,  or  with 
the   question  of   the    adequacy  or  inadequac}'  of   the  compensation 
authorized.     "This  court,"  said  Chase,   C.  J.,   in   the  License  Tax 
Cases,   5  Wall.   469,   "  can   know  nothing    of   public   policy,  except 
from  the  constitution  and  the  laws,  and  the  course  of  iidministration 
and    decision.     It  has  no   legislative    powers.     It  cannot  amend  or 
modify  any  legislative  acts.     It  cannot  examine  questions  as  expe- 
dient or  inexpedient,  as  politic  or  impolitic.     Considerations  of  that 
sort  must,  in  general,  be    addressed  to  the   legislature.      Questions 
of  policy  determined  there  are  concluded  here."     Can  it  be  said,  in 
view  of  the  exceptional  circumstances,  that  the  business  of  elevating 
grain  is  not  "  affected  with  a  public  interest,"  within  the  language  of 
Lord  Hale,  or  that  the  case  does  not  fall  within  the  principle  which 
permits  the  legislature  to  regulate  the  business  of  common  carriers, 
ferrymen,  innkeepers,  hackmen,  and  the  interest  on  the  use  of  money? 
It  seems  to  us  that  speculative,   if  not  fanciful,  reasons  have  been 
assigned  to  account  for  the  right  of  legislative  regulation  in  these 
and  other  cases.     It  is  said  that  the  right  to  regulate  the  charges  of 
hackmen  springs  from  the  fact  that  they  are  assigned  stands  in  the 
public  streets;   that  the  legislature  may  regulate  the  toll  on  ferries 
because  the  right  to  establish  a  ferry  is  a  franchise,  and  therefore 
the  business  is  subject  to  regulation;  that  the  right  to  regulate  wharf- 
age rested  upon  the  permission  of  the  sovereign  to  extend  wharves 
into  the  beds  of  navigable    streams,  the  title  to  which  was    in  the 
sovereign ;  that  the  right  to  regulate  the  interest  on  the  use  of  money 
sprung  from  the  fact  that  taking  interest  was  originally  illegal   at 
common  law,  and  that  where  the  right  was  granted  by  statute  it  was 
taken  subject  to  regulation  by  law.     The  plain  reason,  we  think,  why 
the  charges  of  hackmen  and  ferrymen  were  made  subject  to  public 
regulation  is  that  they  were  common  carriers.     The  reason  assigned 
for  the  right  to  regulate  wharfage  in  England  overlooks  the  fact  that 
the  title  to  the  beds  of  navigable  streams  was  frequently  vested  in  a 
subject,    and    was    his    private    property,   subject   to   certain   public 
ri"hts,  as  the  right  of  navigation,  and  no  distinction  as  to  the  power 
of   public   regulation    is    suggested    in   the    ancient    books   between 
wharves  built  upon  the  beds  of  navigable  waters,  the  title  to  which 
was  in  the  sovereign,  and  wharves  erected  upon  navigable  streams, 
the   beds  of  which   belonged  to  a  subject.       The  obligation   of  the 
o-wner  of  the  only  wharf  in  a  newly  erected  port  to  charge  only  reas- 
onable wharfage  is  placed  by  Lord  Hale  on  the  ground  of  a  virtual, 
as  distinguished  from  a  legal,  monopoly.     The  reason  assigned  for 
the  right  to  regulate  interest  takes  no  account  of  the  fact  that  the 
prohibition  by  the  ancient  common  law  to  take  interest  at  all  was  a 
re^Julation,  and  this  manifestly  did  not  rest  upon  any  benefit  con- 


PEOPLE   V.   BUDD.  51 

ferred  on  the  lenders  of  money.  It  was  a  regulation  springing  from 
a  supposed  public  interest,  and  was  peculiarly  oppressive  on  a  certain 
class.  A  law  prohibiting  the  taking  of  interest  on  the  use  of  money 
wouhl  now  be  deemed  a  violation  of  a  right  of  proi)erty.  But  the 
material  point  is  that  the  prohibition,  as  well  as  the  regulation,  of 
interest,  was  bascnl  upon  public  policy,  and  the  present  conceded  right 
of  reguhition  does  not  have  its  foundation  in  any  grant  or  privilege 
conferred  by  the  sovereign.  The  attempts  made  to  place  the  right 
of  public  regulation  in  these  cases  upon  the  ground  of  special  priv- 
ilege conferred  by  the  public  on  those  affected  cannot,  we  think,  be 
supported.  The  underlying  principle  is  that  business  of  certain 
kinds  holds  such  a  peculiar  relation  to  the  public  interests  that  there 
is  superinduced  upon  it  the  right  of  public  regulation.  We  rest  the 
power  of  the  legislature  to  control  and  regulate  elevator  charges 
on  the  nature  and  extent  of  the  business,  the  existence  of  a  virtual 
monopoly,  the  benefit  derived  from  the  canal,  creating  the  business 
and  making  it  possible,  the  interest  to  trade  and  commerce,  the  rela- 
tion of  the  business  to  the  prosperity  and  welfare  of  the  state,  and 
the  practice  of  legislation  in  analogous  cases.  These  circumstances 
collectively  create  an  exceptional  case,  and  justify  legislative 
regulation. 

The  case  of  Munn  v.  Illinois  has  been  frequently  cited  with  ap- 
proval by  courts  in  other  states.  Nash  v.  Page,  <S0  Ky.  539 ;  Hockett 
V.  State,  105  Ind.  250;  Telephone  Co.  v.  Telegraph  Co.,  QQ  Md.  399; 
Davis  V.  State,  68  Ala.  58.  In  Nash  /'.  Page  it  was  held,  upon  the 
doctrine  of  the  Munn  Case,  that  warehousemen,  for  the  public  sale 
and  purchase  of  tobacco  in  Louisville,  exercised  a  public  business, 
and  assumed  obligations  to  serve  the  entire  public,  and  could  not 
exclude  persons  from  buying  or  selling  tobacco  in  their  warehouses 
who  were  not  members  of  the  board  of  trade.  In  Hockett  v.  State 
it  was  held  that  the  relations  which  telephone  companies  have  assumed 
towards  the  public  imposed  public  obligations,  and  that  all  the  in- 
struments and  appliances  used  by  telephone  companies  in  the  prose- 
cution of  the  business  were,  in  legal  contemplation,  devoted  to  public 
use.  In  Telegraph  Co.  v.  Telephone  Co.  legislation  prohibiting 
discrimination  in  the  business  of  telegraphing  was  upheld  on  the 
doctrine  of  the  Munn  Case.  The  criticism  to  which  the  Munn  Case 
has  been  subjected  has  proceeded  mainly  on  a  limited  and  strict 
construction  and  definition  of  the  police  power.  The  ordinary  sub- 
jects upon  which  it  operates  are  well  understood.  It  is  most  fre- 
quently exerted  in  the  maintenance  of  public  order,  the  protection  of 
the  public  health  and  public  morals,  and  in  regulating  mutual  rights 
of  property,  and  the  use  of  property,  so  as  to  prevent  uses  by  one  of 
his  property  to  the  injury  of  the  property  of  another.  These  are 
instances  of  its  exercise,  but  they  do  not  bound  the  sphere  of  its 
operation.  In  the  King  Case,  110  N.  Y.  418,  it  was  given  a  much 
broader  scope,  and  was  held  to  be  efficient  to  prevent  discrimination 
on  the  ground  of  race  and  color  in  places  opened  for  public  enter* 


52  PEOPLE   V.   BUDD. 

tainment.  In  that  case  the  owner  of  the  skating-rink  derived  no 
special  privilege  or  protection  from  the  state.  The  public  held  no 
right,  in  any  legal  sense,  to  resort  to  his  premises.  His  permission, 
except  for  the  public  interest  involved,  was  revocable  as  to  the  whole 
community  or  any  individual  citizen.  But  it  was  held  that  so  long 
as  he  devote'd  his  place  to  purposes  of  public  entertainment  he  sub- 
jected it  to  public  regulations.  There  is  little  reason,  under  our 
system  of  government,  for  placing  a  close  and  narrow  interpretation 
on  the  police  power,  or  in  restricting  its  scope  so  as  to  hamper  the 
legislative  power  in  dealing  with  the  varying  necessities  of  society, 
and  the  new  circumstances  as  they  arise,  calling  for  legislative  inter- 
vention in  the  public  interest.  Life,  liberty,  and  property  have  a 
substantial  protection  against  serious  invasion  by  the  legislature  in 
the  traditions  of  the  English-speaking  race,  and  a  pervading  public 
sentiment  which  is  quick  to  resent  any  substantial  encroachment  upon 
personal  freedom  or  the  rights  of  property.  In  no  country  is  the 
force  of  public  opinion  so  direct  and  imperative  as  in  this.  The 
legislature  may  transgress  the  principles  of  the  Constitution.  Jt 
has  done  so  in  the  past,  and  it  may  be  expected  that  it  will  some- 
times do  so  in  the  future.  But  unconstitutional  enactments  have 
generally  been  the  result  of  haste  or  inadvertence,  or  of  transient  and 
unusual  conditions  in  times  of  public  excitement  which  have  been 
felt  and  responded  to  in  the  halls  of  legislation.  The  framers  of  the 
government  wisely  interposed  the  judicial  power,  and  invested  it 
with  the  prerogative  of  bringing  every  legislative  act  to  the  test  of 
the  Constitution.  But  no  serious  invasion  of  constitutional  guaran- 
ties by  the  legislature  can  for  a  long  time  withstand  the  searching 
influence  of  public  opinion,  which  sooner  or  later  is  sure  to  come  to 
the  side  of  law  and  order  and  justice,  however  much  for  a  time  it  may 
have  been  swayed  by  passion  or  prejudice,  or  whatever  aberration 
may  have  marked  its  course.  So,  also,  in  that  wide  range  of  legis- 
lative powers  over  persons  and  property  wiiich  lie  outside  of  the  pro- 
hibitions of  the  Constitution,  and  which  inhere  of  necessity  in  the 
very  idea  of  government,  by  which  persons  and  property  may  be 
affected  without  transgressing  constitutional  guaranties,  there  is  a 
restraining  and  corrective  power  in  public  opinion  which  is  a  safe- 
guard of  tremendous  force  against  unwise  and  impolitic  legislation, 
hampering  individual  enterprise,  and  checking  the  healthful  stimulus 
of  self-interest,  which  are  the  life-blood  of  commercial  progress. 
The  police  power  may  be  used  for  illegitimate  ends,  although  no 
court  can  say  that  the  fundamental  law  has  been  violated.  There  is 
a  remedy  at  the  polls,  and  it  is  an  efficient  remedy  if,  at  the  bottom, 
the  legislation  under  it  is  oppressive  and  unjust.  The  remedy  by 
taking  away  the  power  of  the  legislature  to  act  at  will  would,  indeed, 
be  radical  and  complete.  But  the  moment  the  police  power  is  de- 
stroyed or  curbed  by  fixed  and  rigid  rules  a  danger  is  introduced  into 
our  system  which  would,  we  think,  be  far  greater  than  results  from 
an  occasional  departure  by  the  legislature  from  correct  principles  of 


PEOPLE    V.   BUDD.  53 

government.  TVe  here  conclude  our  examination  of  the  important 
question  presented  by  this  case.  The  division  of  opinion  in  this 
and  other  courts  is  evidence  of  the  ditliculty  which  surrounds  it. 
But  it  is  ever  to  be  remembered  that  a  statute  must  stand  so  long  as 
any  reasonable  doubt  can  be  indulged  in  favor  of  its  constitution- 
ality. We  are  of  opinion  that  the  statute  of  1888  is  constitutional, 
as  a  whole,  and  that  although  it  may  comprehend  cases  which,  stand- 
ing alone,  might  not  justify  legislative  interference,  yet  they  must  be 
governed  by  the  general  rule  enacted  by  the  legislature.  The  judg- 
ment should  be  affirmed. 

RuGER,  C.  J.,  and  Earl,  Danforth,  and  Finch,  JJ.,  concur. 

Peckham,  J.,  dissenting.^  I  contend  that,  within  the  subject  now 
under  review,  the  meaning  of  the  phrase,  "  devoting  one's  prop- 
erty to  a  public  use,"  ...  is  that  such  devotion  or  dedication  is 
made  when  by  reason  of  it  the  public  thereafter  have  a  legal  right  to 
resort  to  the  property,  and  to  use  it  for  a  reasonable  compensation, 
or  for  such  as  the  law  provides,  or  else  where  some  privilege  or  right 
is  granted  by  the  government,  in  which  case  the  right  of  limitation 
is  based  upon  and  is  really  a  part  consideration  for  the  grant.  In 
the  one  case  the  legal  right  to  resort  to  and  use  the  property  by  the 
public,  so  long  as  the  owner  chooses  to  remain  in  the  business, 
springs  from  this  dedication,  and  it  is  the  criterion  that  is  to  decide 
the  question  whether  the  property  has  or  has  not  been  thus  dedicated; 
and  this  right  does  not  spring  into  existence  merely  because  the 
business  is  such  as  interests  a  great  number  of  the  public,  or  because 
it  is  of  large  extent,  or  because  there  is  no  other  property  at  that 
place  which  is  or  conveniently  may  be  devoted  to  the  same  kind  of 
business;  while,  in  the  other  case,  the  right  of  limitation  exists 
because  some  privilege  or  franchise  has  been  granted  to  the  owner 
by  the  sovereign  power,  an  acceptance  of  which  carries  with  it  the 
burden  of  submitting  to  the  demand  for  the  service.  As  has  been 
said,  the  right  to  regulate  places  of  public  amusement,  such  as  thea- 
tres and  the  like,  comes  from  another  branch  of  the  police  power, 
and,  as  I  believe,  does  not  extend  to  the  power  to  limit  prices.  The 
right  to  make  use  of  the  owner's  property,  by  reason  of  a  dedication, 
has  been  held  to  have  been  created  in  the  exceptional  cases  of  a  com- 
mon carrier,  the  keeper  of  a  common  inn,  and  a  common  or  public 
wharfinger,  and  perhaps  in  some  others.  These  are  exceptional 
cases,  for  they  trench  upon  the  well-grounded  principle  that  no  man 
can  be  compelled  to  enter  into  business  relations  with  another  unless 
the  party  carrying  on  the  business  shall  have  received  some  privilege, 
right,  or  franchise  from  the  sovereign  power,  when  such  compulsion 
may  be  annexed  to  the  grant.  The  principle  should  not  be 
extended.   .  .  . 

There  can  be  no  legal  objection  to  the  power  to  direct  the  weight 
of  a  loaf  of  bread,  for  that  is  a  mere  police  regulation,  interfering 

1  Part  of  this  opinion  is  omitted.  —  Ed. 


54  PEOPLE    V.    BUDD. 

with  no  man's  real  liberty,  and  it  is  the  same  as  if  the  length  of  a 
yard  were  declared  by  law,  or  the  weight  of  a  ton.  But  I  deny  the 
right  of  any  legislature  in  this  country  to  limit  the  price  for  which 
an  individual  baker  shall  sell  his  bread  per  loaf,  or  the  price  per  ton 
for  which  a  coal  dealer  shall  sell  his  coal,  or  the  price  which  a  tailor 
shall  charge  for  his  coat,  or  the  shoemaker  for  his  shoes.  A  common 
carrier  exercises,  it  has  been  stated,  a  kind  of  public  office,  and 
when  a  man  devotes  himself  to  such  a  calling,  and  holds  himself  out 
to  the  public  as  a  common  carrier,  he  thereby  grants  to  the  public 
such  an  interest  in  his  business  that  each  individual  has  the  legal 
right  to  demand  the  carriage  of  his  property  by  the  carrier  upon  pay- 
ment or  tender  of  a  reasonable  compensation  for  carriage,  in  the 
absence  of  a  legal  regulation  thereof.  Allen  v.  Sackrider,  37  N.  Y. 
341.  He  thus  becomes  a  common  carrier  because  of  this  dedication 
to  the  general  public,  and  this  legal  right  of  the  public  to  demand 
this  service  springs  from  such  dedication.  The  same  is  true  of  a 
public  wharfinger  or  the  keeper  of  a  common  inn.  They  were  all 
called  "  common  "  in  their  several  occupations,  and  were  common 
because  they  held  themselves  out  as  such  to  the  public,  and,  as  was 
said  in  some  of  the  old  books,  entered  into  a  general  contract  with 
the  whole  public  to  do  the  work,  and  hence  arose  the  right  of  the 
public  to  call  upon  them  to  fulfil  this  contract.  No  such  right  of 
access  to  the  premises  of  defendants  exists,  and  no  such  right  to 
demand  the  use  of  their  property  can  be,  or,  as  I  understand,  is 
pretended.  But  unless  the  innkeeper  was  the  keeper  of  a  common 
inn,  or  the  carrier  a  common  one,  or  the  wharfinger  was  a  public  one, 
no  matter  what  the  extent  of  their  business,  or  how  large  a  number 
of  the  public  were  entertained  by  them,  as  the  public  had  no  right  of 
resort  to  their  premises,  or  to  demand  transportation  for  or  the  care 
of  their  goods,  or  entertainment  at  their  house,  the  right  of  regulation 
did  not  exist  as  to  the  compensation  they  should  receive.  The  cases 
are,  as  has  been  said,  exceptions  to  the  general  rule  that  no  man  can 
be  compelled  to  have  business  relations  with  another.   .   .   . 

The  disposition  of  legislatures  to  interfere  in  the  ordinary  con- 
cerns of  the  individual,  as  evidenced  by  the  laws  enacted  by  parlia- 
ments and  legislatures  from  the  earliest  times,  and  the  futility  of 
such  interference  to  accomplish  the  purposes  intended,  have  been  the 
subject  of  remark  by  some  of  the  ablest  of  English-speaking  observ- 
ers. Buckle,  in  his  History  of  Civilization  in  England,  in  speaking 
of  the  course  of  English  legislation,  says:  "Every  great  reform 
which  has  been  effected  has  consisted,  not  in  doing  something  new, 
but  in  undoing  something  old.  The  most  valuable  additions  made 
to  legislation  have  been  enactments  destructive  of  preceding  legisla- 
tion, and  the  best  laws  which  have  been  passed  have  been  those  by 
which  some  former  laws  have  been  repealed."  And  again:  "  We  find 
laws  to  regulate  wages;  laws  to  regulate  prices;  laws  to  regulate 
profits;  laws  to  regulate  the  interest  of  money;  custom-house  arrange- 
ments of  the  most  vexatious  kind,  aided  by  a  complicated  scheme, 


PEOPLE   V.    BUDD.  55 

wbich  was  well  called  the  '  slidiug-scale, '  —  a  scheme  of  such  per- 
verse ingenuity  tliat  the  duties  constantly  varied  on  the  same  article, 
and  no  man  could  calculate  beforehand  what  he  would  have  to  pay. 
A  system  was  organized,  and  strictly  enforced,  of  interference  with 
markets,  interfei'ence  with  manufacturers,  interference  with  machin- 
ery, interference  even  with  shops.  In  other  words,  the  industrious 
classes  were  robbed  in  order  that  industry'  might  thrive."  Volume 
I.  pp.  199,  200,  etc.  The  legislation  under  review  is  of  the  same 
general  nature.  To  uphold  legislation  of  this  character  is  to  provide 
the  most  frequent  opportunity  for  arraying  class  against  class;  and, 
in  addition  to  the  ordinary  competition  that  exists  throughout  all 
industries,  a  new  competition  will  be  introduced,  that  of  competition 
for  the  possession  of  the  government,  so  that  legislative  aid  may  be 
given  to  the  class  in  possession  thereof  in  its  contests  with  rival 
classes  or  interests  in  all  sections  and  corners  of  the  industrial  world. 
We  shall  have  a  recurrence  of  legislation  which,  it  has  been  sup- 
posed, had  been  outgrown  not  only  as  illegal,  but  as  wholly  useless 
for  any  good  effect,  and  only  powerful  for  evil.  Contests  of  such  a 
nature  are  productive  only  of  harm.  The  only  safety  for  all  is  to 
uphold,  in  their  full  vigor,  the  healthful  restrictions  of  our  Constitu- 
tion, which  provide  for  the  liberty  of  the  citizen,  and  erect  a  safe- 
guard again.st  legislative  encroachments  thereon,  whether  exerted 
to-day  in  favor  of  what  is  termed  the  "laboring  interests,"  or  to- 
morrow in  favor  of  the  capitalists.  Both  classes  are  under  its  pro- 
tection, and  neither  can  interfere  with  the  liberty  of  the  citizen,  with- 
out a  violation  of  the  fundamental  law.  In  my  opinion,  the  court 
should  not  strain  after  holding  such  species  of  legislation  constitu- 
tional. It  is  so  plain  an  effort  to  iuterfei'e  with  what  seems  to  me  the 
most  sacred  rights  of  property  and  the  individual  liberty  of  contract 
that  no  special  intendment  in  its  favor  should  be  indulged  in.  It  will 
not,  as  seems  to  me  plain,  even  achieve  the  purposes  of  its  authors. 
I  believe  it  vain  to  suppose  that  it  can  be  other  than  of  the  most 
ephemeral  nature,  at  its  best,  or  that  it  will  have  any  real  virtue  in 
altering  the  general  laws  of  trade,  while,  on  the  other  hand,  it  may 
ruin  or  very  greatly  impair  the  value  of  the  property  of  wholly  inno- 
cent persons.  If  the  compensation  limited  by  the  act  is  not  sufBcient 
to  permit  the  average  rate  of  profit  upon  the  capital  invested,  it  will 
result  either  in  its  evasion,  or  else  the  work  will  not  be  done,  and  the 
capital  employed  will  seek  other  channels  where  such  average  rate 
can  be  realized,  or  the  property  will  become  of  little  or  no  value. 
If  the  compensation  be  sufficient,  the  same  result  aimed  at  would 
soon  follow  from  the  general  laws  of  trade,  from  the  law  of  supply 
and  demand,  and  the  general  cost  of  labor  and  materials. 

Every  one  having  the  same  right  to  build  an  elevator  or  warehouse 
that  these  defendants  have,  and  upon  its  completion  to  employ  it  in 
the  same  business,  if  the  rate  of  profit  is  above  the  average,  capital, 
if  allowed  absolute  freedom  and  legal  protection,  will  flow  into  the 
business  until  there  is  enough  invested  to  do  all  or  more  than  all  the 


56  PEOPLE   V.   BUDD, 

work  offered,  and  then,  by  the  competition  of  capital,  the  rate  of 
compensation  would  come  down  to  the  average.  Such,  at  least, 
would  be  the  tendency,  and  it  could  only  be  averted  by  combination 
among  the  owners  of  the  property,  which  could  not  be  long  sustained 
in  the  face  of  perfect  freedom  to  all  to  invest  in  such  undertakings. 
That  they  are  expensive,  and  require  the  outlay  of  a  large  amount  of 
money  to  build  and  maintain  them,  and  that  the  warehouses  now 
existing  may  have  an  advantage  in  location,  does  not,  as  has  been 
shown,  make  them  a  monopoly,  but  simply  tends  to  make  the  inevi- 
table result  a  trifle  more  slow  in  its  approach  than  in  other  cases 
requiring  a  smaller  outlay.  If  it  be  said  that  there  is  already  a  super- 
abundance of  elevators,  more  than  can  be  or  are  used,  and  that  some 
of  them  lie  idle  while  others  do  the  work,  and  they  all  share  in  the 
profit,  if  the  profit  exceed  what  the  owners  of  the  grain  or  those 
engaged  in  its  transportation  can  afford  to  pay,  the  result  will  then 
be  that  the  persons  so  engaged  will  cease  from  that  kind  of  work,  or 
else  the  owners  of  the  elevators  will  reduce  their  charges.  This  re- 
duction of  charges  will  most  surely  take  place  before  the  owners  of 
the  elevators  would  allow  the  business  to  pass  out  of  existence,  pro- 
vided the  compensation  after  such  reduction  would  enable  them  to 
realize  the  average  rate  of  profit  for  their  capital;  while,  if  it  would 
not,  it  would  be  conclusive  proof  that  the  business  of  transportation 
of  grain  or  other  commodities,  where  the  boats  were  to  be  loaded  or 
unloaded  by  elevators,  could  no  longer  be  conducted  with  profit  to  all 
parties,  and  some  new  way  would  have  to  be  discovered  and  put  in 
practice;  for  capital  will  not  seek  investment  or  employment  where 
the  average  rate  of  profit  cannot  be  commanded,  and  men  will  not 
continue  to  transport  grain  or  any  other  commodity  at  a  loss,  or  upon 
such  terms  that  they  cannot  earn  a  livelihood.  If  this  is  the  case  in 
the  transportation  of  grain  by  the  canal,  owing  to  the  competition  of 
railroads  and  their  ability  to  transport  it  cheaply  and  rapidly  then 
that  fact  must  be  faced.  Such  a  business  cannot  be  maintained  for 
any  length  of  time  by  legislation,  at  the  expense  either  of  capital  or 
of  the  transporter.  Each  must  earn  the  average  profit  in  the  same 
general  line  of  business,  or  the  business  must,  from  economical 
reasons,  cease.  The  legislation  under  consideration  is  not  only 
vicious  in  its  nature,  communistic  in  its  tendency,  and,  in  my  belief, 
wholly  inefficient  to  permanently  obtain  the  result  aimed  at,  but,  for 
the  reasons  already  given,  it  is  an  illegal  effort  to  interfere  with  the 
lawful  privilege  of  the  individual  to  seek  and  obtain  such  compen- 
sation as  he  can  for  the  use  of  his  own  property,  where  he  neither 
asks  nor  receives  from  the  sovereign  power  any  special  right  or 
immunity  not  given  to  and  possessed  by  every  other  citizen,  and 
where  he  has  not  devoted  his  property  to  any  public  use,  within  the 
meaning  of  the  law.  The  orders  of  the  general  and  special  terms 
of  the  Supreme  Court  should  therefore  be  reversed,  and  the  relators 
discharged. 

Gray,  J.,  concurs. 


BUDD    V.    NEW    YORK.  57 

A  writ  of  error  was  brought  in  the  Supreme  Court  of  the  United 
States.     Mr.  Justice  Blatciiford  delivered  the  opiuion  of  the  court. ^ 

This  court,  in  Munn  v.  Illinois,  the  opinion  being  delivered  by  Chief 
Justice  Waite,  and  there  being  a  published  dissent  by  only  two  justices, 
considered  carefully  the  question  of  the  repugnancy  of  the  Illinois 
statute  to  the  Fourteenth  Amendment.  It  said,  that  under  the  powers 
of  government  inherent  in  every  sovereignty,  "the  government  regu- 
lates the  conduct  of  its  citizens  one  towards  another,  and  tlie  manner 
in  which  each  shall  use  his  own  property,  when  such  regulation  be- 
comes necessary  for  the  public  good  ;  "  and  tliat,  "  in  their  exercise  it 
has  been  customar}'  in  England  from  time  immemorial,  and  in  this 
countr}'  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  etc.,  and  in  so 
doing  to  fix  a  maximum  of  charge  to  be  made  for  services  rendeied, 
accommodations  furnished,  and  articles  sold."  It  was  added:  "To 
this  day,  statutes  are  to  be  found  in  many  of  the  States  upon  some  or 
all  these  subjects  ;  and  we  think  it  has  never  yet  been  successfully 
contended  tiiat  such  legislation  came  within  any  of  the  constitutional 
prohibitions  against  interference  with  private  property."  It  announced 
as  its  conclusions  that,  down  to  the  time  of  the  adoption  of  the  Four- 
teenth Amendment,  it  was  not  supposed  that  statutes  regulating  the 
use,  or  even  the  price  of  the  use,  of  private  property  necessarilj-  de- 
prived an  owner  of  his  propert}'  without  due  piocess  of  law  ;  that, 
when  private  property-  was  devoted  to  a  public  use,  it  was  subject  to 
public  regulation  ;  that  Munn  and  Scott,  in  conducting  the  business  of 
their  warehouse,  pursued  a  public  employment  and  exercised  a  sort  of 
public  office,  in  the  same  sense  as  did  a  common  carrier,  miller,  ferry- 
man, innkeeper,  wharfinger,  baker,  cartman  or  hackne}'  coachman  ; 
tliat  they  stood  in  the  very  gateway  of  commerce  and  took  toll  from 
all  who  passed  ;  that  their  business  tended  "  to  a  common  charge," 
and  had  become  a  thing  of  public  interest  and  use  ;  that  the  toll  on  the 
grain  was  a  common  cliarge  ;  and  that,  according  to  Lord  Chief  Justice 
Hale,  every  such  warehouseman  "  ought  to  be  under  a  public  regula- 
tion, viz."  that  he  "  take  but  reasonable  toll." 

This  court  further  held  in  Ifunn  v.  Illinois,  that  the  business  in 
question  was  one  in  which  the  whole  public  had  a  direct  and  positive 
interest ;  that  the  statute  of  Illinois  simpl}'  extended  the  law  so  as  to 
meet  a  new  development  of  commercial  progress  ;  that  there  was  no 
attempt  to  compel  the  owners  of  the  warehouses  to  grant  tiie  public  an 
interest  in  their  property,  but  to  declare  their  obligations  if  they  used 
it  in  tliat  particular  manner;  that  it  mattered  not  that  Munn  and  Scott 
had  built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  ado|)ted ;  that,  the  property  being 
clothed  with  a  public  interest,  what  was  a  reasonable  compensation  for 
its  use  was  not  a  judicial,  but  a  legislative  question  ;  that,  in  countries 
where  the  common  law  prevailed,  it  had  been  customary  from  time 

1  An  extract  from  the  opinion  only  is  given.  —  Ed. 


N 


58  BUDD   V.   NEW   YORK. 

immemorial  for  the  legislature  to  declare  what  should  be  a  reasonable 
compensation  under  such  circumstances,  or  to  fix  a  maximum  be3-ond 
which  any  charge  made  would  be  unreasonable  ;  that  the  warehouses 
of  Munn  and  Scott  were  situated  in  Illinois  and  their  business  was 
carried  on  exclusively  in  that  State  ;  that  the  warehouses  were  no  more 
necessarily'  a  part  of  commerce  itself  than  the  dray  or  the  cart  by 
which,  but  for  them,  grain  would  be  transferred  from  one  railroad 
station  to  another ;  that  their  regulation  was  a  thing  of  domestic  con- 
cern ;  that,  until  Congress  acted  in  reference  to  their  interstate  rela 
tions,  the  State  might  exercise  all  the  powers  of  gOA-ernment  over 
them,  even  though  in  so  doing  it  might  operate  indirectly  upon  com- 
merce outside  its  immediate  jurisdiction  ;  and  that  the  provision  of  §  9 
of  article  1  of  the  Constitution  of  the  United  States  operated  only  as 
a  limitation  of  the  powers  of  Congress,  and  did  not  affect  the  States  in 
the  regulation  of  their  domestic  affairs.  The  final  conclusion  of  the 
court  was,  that  the  Act  of  Illinois  was  not  repugnant  to  the  Constitu- 
tion of  the  United  States ;  and  the  judgment  was  affirmed. 

In  Sinking/  Fund  Cases,  99  U.  S.  700,  747,  Mr.  Justice  Bradley, 
who  was  one  of  the  justices  who  concurred  in  the  opinion  of  the  court 
in  Munn  v.  Illinois,  speaking  of  that  case,  said:  "  The  inquiry  there 
was  as  to  the  extent  of  the  police  power  in  cases  where  the  public 
interest  is  affected  ;  and  we  held  that  when  an  employment  or  business 
becomes  a  matter  of  such  public  interest  and  importance  as  to  create 
a  common  charge  or  burden  u[)on  the  citizen  ;  in  other  words,  wlien  it 
becomes  a  practical  monopoly,  to  which  the  citizen  is  compelled  to 
resort,  and  by  means  of  which  a  tribute  can  be  exacted  from  the  com- 
munitA',  it  is  subject  to  regulation  by  the  legislative  power."  Although 
this  was  said  in  a  dissenting  opinion  in  Sinldng  Fund  Cases,  it  shows 
what  Mr.  Justice  Bradley  regarded  as  the  principle  of  the  decision  in 
Munn  V.  Illinois. 

In  Spring  Valley  Water  Works  v.  Srhottler,  110  U.  S.  347,  354, 
this  court  said  :  "That  it  is  within  the  power  of  the  government  to 
regulate  the  prices  at  which  water  shall  be  sold  by  one  who  enjoA's  a 
virtual  monopol}'  of  the  sale,  we  do  not  doubt.  That  question  is 
settled  l\v  what  was  decided  on  full  consideration  in  Munn  v.  Illinois, 
94  U.  S.  113.  As  was  said  in  that  case,  such  regulations  do  not  de- 
pri\  e  a  person  of  his  property  without  due  process  of  law." 

In  Wabash  &c.  Railway  Co.  v.  Illinois,  118  U.  S.  557,  569,  Mr. 
Justice  Miller,  who  had  concurred  in  the  judgment  in  Munn  v.  Illinois, 
referred,  in  delivering  the  opinion  of  the  court,  to  that  case,  and  said: 
"  That  case  presented  the  question  of  a  private  citizen,  or  unincorpo- 
rated partnership,  engaged  in  the  warehousing  business  in  Chicago, 
free  from  any  claim  of  right  or  contract  under  an  Act  of  Incorporation 
of  any  State  whatever,  and  free  from  the  question  of  continuous  trans- 
portation through  several  States.  And  in  that  case  the  court  was  pre- 
sented with  the  question,  which  it  decided,  whether  any  one  engaged 
in  a  public  business,  in  which  all  the  public  had  a  right  to  require  his 


BUDD   V.   KEW  YORK.  59 

service,  could  be  regulated  b}-  Acts  of  the  Legislature  in  the  exercise  of 
this  public  function  and  public  dut}-,  so  far  as  to  limit  tlie  amount  of 
charges  that  should  be  made  for  such  services." 

In  Doio  V.  Beidelman,  125  U.  S.  680,  G86,  it  was  said  b}'  Mr.  Justice 
Gray,  in  delivering  the  opinion  of  the  court,  that  in  Mann  v.  llLuiols 
tlie  court,  after  allirming  the  doctrine  that  by  the  common  law  carriers 
or  other  persons  exercising  a  public  employment  could  not  charge 
more  than  a  reasonable  compensation  for  their  services,  and  that  it  is 
williin  the  power  of  the  legislature  "  to  declare  what  shall  be  a  reason- 
able compensation  for  such  services,  or  perhaps,  more  properly  speak- 
ing, to  fix  a  maximum  beyond  which  any  charge  made  would  be  un- 
reasonable," said  that  to  limit  the  rate  of  charges  for  services  rendered 
in  tlie  public  employment,  or  for  the  use  of  property  in  which  the  pub- 
lic has  an  interest,  was  only  changing  a  regulation  which  existed  be- 
fore, and  established  no  new  principle  in  the  law,  but  only  gave  a  new 
effect  to  an  old  one. 

In  Chicago  &c.  Railway  Co.  v.  Minnesota,  134  U.  S.  418,  4G1,  it 
was  said  l\y  Mr.  Justice  Bradley,  in  his  dissenting  opinion,  in  which 
Mr.  Justice  Gray  and  Mr.  Justice  Lamar  concurred,  that  the  decision 
of  the  court  in  that  case  practical!}' overruled  Munn  v.  Illinois;  but 
the  opinion  of  tlie  court  did  not  say  so,  nor  did  it  refer  to  Munn  v. 
Illinois;  and  we  are  of  opinion  that  the  decision  in  the  case  in  134 
U.  S.  is,  as  will  be  hereafter  shown,  quite  distinguishable  from  the  present 
cases. 

It  is  thus  apparent  that  this  court  has  adherbd  to  the  decision  in 
Munn  V.  Illinois  and  to  the  doctrines  announced  in  the  opinion  of  the 
court  in  that  case  ;  and  those  doctrines  have  since  been  repeatedly  en- 
forced in  the  decisions  of  the  courts  of  the  States. 

In  Railway  v.  Railway,  30  Ohio  St.  G04,  616,  in  1877,  it  was  said, 
citing  Munn  v.  Illinois :  "  When  the  owner  of  property'  devotes  it  to 
a  public  use,  he,  in  effect,  grants  to  the  public  an  interest  in  such  use, 
and  must,  to  the  extent  of  the  use,  submit  to  be  controlled  b}'  the  pub- 
lic, for  the  common  good,  as  long  as  he  maintains  the  use."  That  was 
a  decision  b}'  the  Supreme  Court  Commission  of  Ohio. 

In  State  v.  Gas  Company,  34  Ohio  St.  572,  582,  in  1878,  Munn  v. 
Illinois  was  cited  with  approval,  as  holding  that  where  the  owner  of 
propert}'  devotes  it  to  a  use  in  which  the  pul)lic  have  an  interest,  he  in 
effect  grants  to  the  public  an  interest  in  such  use,  and  must,  to  the 
extent  of  that  interest,  submit  to  be  controlled  by  the  public,  for  the 
common  good,  so  long  as  he  maintains  the  use;  and  the  court  added 
that  in  Munn  v.  Illinois  the  principle  was  applied  to  warehousemen 
engaged  in  receiving  and  storing  grain  ;  that  it  was  held  that  their 
rates  of  charges  were  subject  to  legislative  regulation  ;  and  that  the 
principle  applied  with  greater  force  to  corporations  when  the}'  were 
invested  with  franchises  to  be  exercised  to  subserve  the  public  interest. 

The  Supi'eme  Court  of  Illinois,  in  Ruygles  v.  Peojde,  91  Illinois, 
256,  262,  in  1878,  cited  Munn  v.   Peojde,  69  Illinois,  80,  which  was 


GO  BUDD   V.   NEW   YORK. 

affirmed  in  Munn  v.  TH'mols,  as  holding  tliat  it  was  competent  for  the 
General  Assembl}-  to  fix  the  maximum  charges  b}'  individuals  keeping 
public  warehouses  for  storing,  handling  and  shipping  grain,  and  that, 
too,  when  such  persons  had  derived  no  special  privileges  from  the 
State,  but  were,  as  citizens  of  the  State,  exercising  the  business  of 
storing  and  handling  grain  for  individuals. 

The  Supreme  Court  of  Alabama,  in  Davis  v.  Tlie  State,  68  Ala- 
bama, 58,  in  1880,  held  that  a  statute  declaring  it  unlawful,  within 
certain  counties,  to  transport  or  move,  after  sunset  and  before  sunrise 
of  the  succeeding  da}',  any  cotton  in  the  seed,  but  permitting  the  owner 
or  purchaser  to  remove  it  from  the  field  to  a  place  of  storage,  was  not 
unconstitutional.  Against  the  argument  that  the  statute  was  such  a 
despotic  interference  with  the  rights  of  private  propert}'  as  to  be  tan- 
tamount, in  its  practical  effect,  to  a  deprivation  of  ownership  "  without 
due  process  of  law,"  the  court  said  that  the  statute  sought  only  to 
regulate  and  control  the  transportation  of  cotton  in  one  particular  con- 
dition of  it,  and  was  a  mere  police  regulation,  to  which  there  was  no 
constitutional  objection,  citing  Miinn  v.  Illinois.  It  added,  that  the 
object  of  the  statute  was  to  regulate  traffic  in  the  staple  agricultural 
product  of  the  State,  so  as  to  prevent  a  prevalent  evil,  which,  in  the 
opinion  of  the  law-making  power,  might  do  much  to  demoralize  agri- 
cultural labor  and  to  destroy  the  legitimate  profits  of  agricultural  pur- 
suits, to  the  public  detriment,  at  least  within  the  specified  territorj'. 

In  Baker  v.  The  State,  54  Wisconsin,  368,  373,  in  1882,  Munn  v. 
Illinois  was  cited  with  approval  by  the  Supreme  Court  of  Wisconsin, 
as  holding  that  the  Legislature  of  Illinois  had  power  to  regulate  public 
warehouses,  and  the  warehousing  and  inspection  of  grain  within  that 
State,  and  to  enforce  its  regulations  !)}•  penalties,  and  that  such  legis- 
lation was  not  in  conflict  with  an}'  provision  of  the  Federal  Constitution. 

The  Court  of  Appeals  of  Kentucky,  in  1882,  in  Nash  v.  Page,  80 
Kentuck}',  539,  545,  cited  Munn  v.  Illinois,  as  applicable  to  the  case 
of  the  proprietors  of  tobacco  warehouses  in  the  city  of  Louisville,  and 
held  that  the  character  of  the  business  of  the  tobacco  warehousemen 
was  that  of  a  public  employment,  such  as  made  them  subject,  in  their 
charges  and  their  mode  of  conducting  business,  to  legislative  regulation 
and  control,  as  having  a  practical  monopoly  of  the  sales  of  tobacco  at 
auction. 

In  1884,  the  Supreme  Court  of  Pennsylvania,  in  Girard  Storage  Co. 
V.  Sout/mmrk  Co.,  105  Penn.  St.  248,  252,  cited  Munn  v.  Illinois  as 
involving  the  rights  of  a  pi'ivate  person,  and  said  that  the  principle 
involved  in  the  ruling  of  this  court  was,  that  where  the  owner  of  such 
property  as  a  warehouse  devoted  it  to  a  use  in  which  the  public  had  an 
interest,  he  in  effect  granted  to  the  public  an  interest  in  such  use,  and 
must,  therefore,  to  the  extent  thereof,  submit  to  be  controlled  by  the 
public  for  the  common  good,  as  long  as  he  maintained  that  use. 

In  Sannjer  v.  Davis,  136  Mass.  239,  m  1884,  the  Supreme  Judicial 
Court  of  Massachusetts  said  that  nothing  is  better  established  than  the 


BUDD   V.   NEW  YORK.  61 

power  of  the  legislature  to  make  what  are  called  police  regulations, 
declaring  in  what  manner  property  shall  be  used  and  enjoyed  and  busi- 
ness carried  on,  with  a  view  to  the  good  order  and  benefit  of  the  com- 
munity, even  though  they  may  interfere  to  some  extent  witli  the  full 
enjoyment  of  private  property,  and  although  no  compensation  is  given 
to  a  person  so  inconvenienced  ;  and  Munn  v.  lUbiois  was  cited  as 
holding  that  the  rules  of  the  common  law  which  had  from  time  to  time 
been  established,  declaring  or  limiting  the  right  to  use  or  enjoy  prop- 
erty, might  themselves  be  changed  as  occasion  might  require. 

The  Supreme  Court  of  Indiana,  in  1885,  in  Brechhill  v.  Randall^ 
102  Indiana,  528,  held  that  a  statute  was  valid  which  required  persons 
selling  patent  rights  to  file  with  the  clerk  of  the  county  a  copy  of  the 
patent,  with  an  affidavit  of  genuineness  and  authority  to  sell,  on  the 
ground  that  the  State  had  power  to  make  police  regulations  for  the  pro- 
tection of  its  citizens  against  fraud  and  imposition  ;  and  the  court 
cited  Mimn  v.  Illinois  as  authority'. 

The  Supreme  Court  of  Nebraska,  in  1885,  in  Webster  Telephone 
Case^  17  Nebraska,  126,  held  that  when  a  corporation  or  person  as- 
sumed and  undertook  to  supply  a  public  demand,  made  necessary  by 
the  requirements  of  the  commerce  of  the  country,  such  as  a  public  tele- 
phone, such  demand  must  be  supplied  to  all  alike,  without  discrimina- 
tion; and  Munn  Y.  Illinois  was  cited  by  the  prevailing  part}- and  by 
the  court.  The  defendant  was  a  corporation,  and  had  assumed  to  act 
in  a  capacity  which  was  to  a  great  extent  public,  and  had  undertaken 
to  satisfy  a  public  want  or  necessity,  although  it  did  not  possess  any 
special  privileges  by  statute  or  any  monopoly'  of  business  in  a  given 
territory ;  yet  it  was  held  that,  from  the  very  nature  and  character  of 
its  business,  it  had  a  monopoly  of  the  business  which  it  transacted. 
The  court  said  that  no  statute  had  been  deemed  necessary  to  aid  the 
courts  in  holding  that  where  a  person  or  company  undertook  to  supply 
a  public  demand,  which  was  "  affected  with  a  public  interest,"  it  must 
supply  all  alike  who  occupied  a  like  situation,  and  not  discriminate  in 
favor  of  or  against  any. 

In  Stone  v.  Yazoo  &  Miss.  Valley  R.  Co.,  62  Mississippi,  607,  639, 
the  Supreme  Court  of  Mississippi,  in  1885,  cited  ]\[ann  v.  Illinois  as 
deciding  that  the  regulation  of  warehouses  for  the  storage  of  grain, 
owned  by  private  individuals,  and  situated  in  Illinois,  was  a  thing  of 
domestic  concern  and  pertained  to  the  State,  and  as  affirming  the  right 
of  the  State  to  regulate  the  business  of  one  engaged  in  a  public  emplo}'- 
ment  therein,  although  that  business  consisted  in  storing  and  trans- 
ferring immense  quantities  of  grain  in  its  transit  from  the  fields  of 
production  to  the  markets  of  the  world. 

In  Hockett  v.  The  State,  105  Indiana,  250,  258,  in  1885,  the  Su- 
preme Court  of  Indiana  held  that  a  statute  of  the  State  which  pre- 
sci'ibed  the  maximum  price  which  a  telephone  company  should  charge 
for  the  use  of  its  telephones  was  constitutional,  and  that  in  legal  con- 
templation   all  tlie  instruments   and  appliances   used  by  a  telephone 


62  BUDD   V.   NEW   YORK, 

company  in  the  transaction  of  its  business  were  devoted  to  a  public 
use,  and  tlie  property  thus  devoted  became  a  legitimate  subject  of 
legislative  regulation.  It  cited  Mann  v.  Illinois  as  a  leading  case  in 
support  of  that  proposition,  and  said  tliat  although  that  case  had  been 
the  subject  of  comment  and  criticism,  its  authority  as  a  precedent  re- 
mained unshaken.  This  doctrii^  was  confirmed  in  Central  Union 
Telephone,  Co.  v.  Bradbury,  106  Indiana,  1,  in  the  same  year,  and  in 
Central  Union  Telephone  Co,  v.  Tlie  State.,  118  Indiana,  194,  207,  in 
1888,  in  which  latter  case  Munn  v.  Illinois  was  cited  b}-  tlie  court. 

In  Chesujjeahe  &  Potomac  Telephone  Co.  v.  Balto.  &  Ohio  Tele- 
graph Co.,  G6  Maryland,  399,  414,  in  1886,  it  was  held  that  the  tele- 
graph and  the  telephone  were  public  vehicles  of  intelligence,  and  those 
who  owned  or  controlled  them  could  no  more  refuse  to  perform  im- 
partially the  functions  which  tbey  had  assumed  to  discharge  tlian  a 
railwa}-  company,  as  a  common  carrier,  could  rightfulh*  refuse  to  per- 
form its  dut}'  to  the  public ;  and  that  the  legislature  of  the  State  bad 
full  power  to  regulate  the  services  of  telephone  companies,  as  to  the 
parties  to  whom  facilities  should  be  furnished.  The  court  cited  Blunn 
v.  Illinois,  and  said  that  it  could  no  longer  be  controverted  that  the 
legislature  of  a  State  had  full  power  to  regulate  and  control,  at  least 
within  reasonable  limits,  public  emploAments  and  property  used  in 
connection  therewith  ;  that  the  operation  of  the  telegraph  and  the  tele- 
phone in  doing  a  general  business  was  a  public  employment,  and  the 
instruments  and  appliances  used  were  propertv  devoted  to  a  public  use 
and  in  which  the  public  had  an  interest ;  and  that,  such  being  the  case, 
the  owner  of  the  property  thus  devoted  to  public  use  must  submit  to 
have  that  use  and  employment  regulated  b}-  public  authority  for  the 
common  good. 

In  the  Court  of  Chancery  of  New  Jersey,  in  1889,  in  Delaware,  &c. 
Hailroad  Co.  v.  Central  Stock -Yard  Co.,  45  N.  J.  Eq.  50,  60,  it  was 
held  that  the  legislature  had  power  to  declare  what  services  warehouse- 
men should  render  to  the  public,  and  to  fix  the  compensation  that 
might  be  demanded  for  such  services  ;  and  the  court  cited  Mann  v. 
Illinois  as  properly  holding  that  wai-ehouses  for  the  storage  of  grain 
must  be  regarded  as  so  far  public  in  their  nature  as  to  be  subject  to 
legislative  control,  and  that  when  a  citizen  devoted  his  property  to  a 
use  in  which  the  public  had  an  interest,  he  in  effect  granted  to  the 
public  an  interest  in  that  use,  and  rendered  himself  subject  to  control, 
in  that  use,  by  the  bod\-  politic. 

In  Za7iesviUe  v.  Gas-Light  Company,  47  Ohio  St.  1,  in  1889.  it  was 
said  by  the  Supreme  Court  of  Ohio,  that  the  principle  was  well  estab- 
lished, that  where  the  owner  of  property  devotes  it  to  a  use  in  which 
the  public  have  an  interest,  he  in  effect  grants  to  the  public  an  interest 
in  such  use,  and  must  to  the  extent  of  that  interest  submit  to  be  con- 
trolled by  the  public  for  the  common  good,  as  long  as  he  maintains 
the  use;  and  that  such  was  the  point  of  the  decision  in  Munn  v. 
Illinois. 


PORTLAND    NATURAL    GAS    AND    OIL    CO.    V.   STATE.  63 

We  must  regard  the  principle  maintained  in  Munn  v.  Illinois  as 
firmly  established,  and  we  think  it  covers  the  present  cases. 

Judynient  affirmed. 

Brewer,  J.,  gave  a  dissenting  opinion,  in  which  Field,  J.,  and 
Brown,  J.,  concurred. 


PORTLAND   NATURAL   GAS   AND   OIL   CO.    v.    STATE. 
Supreme  Court  of  Indiana,  1893. 

[IS.'J  hid.  54:  34  N.  E.  818.] 

Coffey,  J.  This  was  an  action  by  the  appellee  against  the  appel- 
lant to  compel  the  latter,  by  mandamus,  to  supply  the  residence  of 
the  relator  with  natural  gas  to  be  used  as  lights  and  fuel.  It  appears 
from  the  complaint  that  the  appellant  is  a  corporation  duly  organized 
under  the  laws  of  this  state  for  the  purpose,  among  others,  of  supply- 
ing to  those  within  its  reach  natural  gas  to  be  used  for  lights  and 
fuel.  By  permission  of  the  common  council,  it  has  laid  its  pipes  for 
that  purpose  in  the  streets  and  alleys  of  the  city  of  Portland,  in  this 
state,  and  has  pipes  laid  in  Walnut  Street  of  that  city.  The  relator 
resides  on  Walnut  Street,  on  the  line  of  one  of  the  appellant's  main 
pipes.  His  house  is  properly  and  safely  plumbed  for  the  purpose  of 
obtaining  natural  gas.  In  May,  1«90,  the  relator  demanded  of  the 
appellant  gas  service,  and  tendered  to  it  the  usual  and  proper  charges 
for  such  service;  but  it  refused,  by  its  officers,  to  furnish  the  gas 
demanded,  whereupon  this  suit  was  brought  to  compel  it  to  furnish 
the  gas  desired  by  the  relator.  The  court  overruled  a  demurrer  to 
the  complaint.   .   .   . 

The  vital  question  in  the  case  relates  to  the  right  of  the  relator  to 
compel  the  appellant,  by  mandamus,  to  supply  his  dwelling-house 
with  natural  gas  for  lights  and  fuel.  There  are  cases  which  hold  that 
in  the  absence  of  a  contract,  express  or  implied,  and  where  the 
charter  of  the  company  contains  no  provision  upon  the  subject,  a  gas 
company  is  under  no  more  obligation  to  continue  to  supply  its  cus- 
tomers than  the  vendor  of  other  merchandise,  —  among  which  is  the 
case  of  Com.  v.  Lowell  Gaslight  Co.,  12  Allen,  75.  But  we  think 
that  the  better  reason,  as  well  as  the  weight  of  authority,  is  against 
this  holding.  Mr.  Beach,  in  his  work  on  Private  Corporations 
(Volume  II.,  §  83.5),  says:  "Gas  companies,  being  engaged  in  a 
business  of  a  public  character,  are  charged  with  the  performance  of 
public  duties.  Their  use  of  the  streets,  whose  fee  is  held  by  the 
municipal  corporation  in  trust  for  the  benefit  of  the  public,  has  been 
likened  to  the  exercise  of  the  power  of  eminent  domain.  Accordingly 
a  gas  company  is  bound  to  supply  gas  to  premises  with  which  its 
pipes  are  connected."     Mr.  Cook,  in  his  work  on  Stock  and  Stock- 


64  PEOPLE   V.   CHICAGO   AND   ALTON    RAILEOAD. 

holders  and  Corporation  Law  (section  674"),  says:  "Gas  companies, 
also,  are  somewhat  public  in  their  nature,  and  owe  a  duty  to  supply 
gas  to  all."  To  the  same  effect  are  the  following  adjudicated  cases: 
State  V.  Columbus  Gaslight  &  Coke  Co.,  34  Ohio  St.  572;  New 
Orleans  Gaslight  Co.  v.  Louisiana  Light  «fe  Heat  Producing,  etc., 
Co.,  115  U.  S.  650;  People  r.  Manhattan  Gaslight  Co.,  45  Barb. 
136;  Gibbs  v.  Gas  Co.,  130  U.  S.  396;  Williams  v.  Gas  Co.,  52 
Mich.  499 ;  Gaslight  Co.  v.  Richardson,  63  Barb.  437.  Our  general 
assembly,  recognizing  the  fact  that  natural  gas  companies  were,  in 
a  sense,  public  corporations,  conferred  upon  them  the  right  of  emi- 
nent domain  by  an  act  approved  February  20,  1889  (Acts  1889,  p. 
22).  It  has  often  been  held  that  mandamus  is  the  proper  proceed- 
ing by  which  to  compel  a  gas  company  to  furnish  gas  to  those  entitled 
to  receive  it.  8  Amer.  &,  Eug.  Enc.  Law,  pp.  1284-1289;  People  v. 
Manhattan  Gaslight  Co.,  supra  •  Williams  v.  Gas  Co.,  snpra;  Gas- 
light Co.  V.  Richardson,  sujn-a.  In  view  of  these  authorities,  we  are 
constrained  to  hold  that  a  natural  gas  company,  occupying  the  streets 
of  a  town  or  city  with  its  mains,  owes  it  as  a  duty  to  furnish  those 
who  own  or  occupy  the  houses  abutting  on  such  street,  where  such 
owners  or  occupiers  make  the  necessary  arrangements  to  receive  it, 
and  comply  with  the  reasonable  regulations  of  such  company,  such 
gas  as  they  may  require,  and  that,  where  it  refuses  or  neglects  to 
perform  such  duty,  it  may  be  compelled  to  do  so  by  writ  of  man- 
damus.  As  to  the  sufficiency  of  an  answer  averring  that  the  com- 
pany had  not  a  sufficient  supply  to  furnish  all  those  demanding  gas, 
we  intimate  no  opinion,  as  no  such  defence  was  interposed  in  this 
case.  It  follows  that  the  complaint  in  this  case  states  a  cause  of 
action  against  the  appellant,  and  that  the  court  did  not  err  in  over- 
ruling the  demurrer  thereto.  Judgment  affirmed.'^ 


PEOPLE  V.    CHICAGO   AND   ALTON   RAILROAD. 

Supreme  Court  of  Illinois,  1889. 

[130  7/7.  175:  22  N.  E.  857.] 

Bailey,  .J.  This  was  a  petition  for  a  mandamus^  brought  by  the 
people  of  the  state  of  Illinois,  on  the  relation  of  the  attorney-general, 
against  the  Chicago  &  Alton  Railroad  Company,  to  compel  said  com- 
pany to  establish  and  maintain  a  station  for  the  receipt  and  discharge 
of  passengers  and  freight  at  Upper  Alton,  in  Madison  County.^  .   .   . 

To  the  petition  the  defendant  interposed  a  general  demurrer,  which 
was  sustained  by  the  court,  and  the  attorney-general  electing  to  abide 
by  his  petition,  final  judgment  was  entered  in  favor  of  the  defendant. 
From  that  judgment  the  petitioners  have  appealed  to  this  court. 

1  Ace.  Coy  V.  Gas  Co..  146  Ind.  655  ;  46  N.  E.  17. 
^  The  recital  of  the  petition  is  omitted.  —  Ed. 


PEOPLE    V.    CHICAGO    AXD    ALTON   EAILROAD.  65 

There  is,  so  far  as  we  have  been  able  to  discover,  no  provision  of 
any  statute  wliich  can  be  appealed  to  in  support  of  the  prayer  of  the 
petition.  Neither  in  the  defendant's  charter  nor  in  any  other  act  of 
the  general  assembly  does  there  seem  to  be  any  attempt  to  prescribe 
the  rules  by  which  the  defendant  is  to  be  governed  in  the  location  of 
its  freight  and  passenger  stations,  or  to  confer  upon  the  Circuit  Court 
the  power  to  interpose  and  direct  as  to  their  location.  It  is  plain 
that  the  act  of  1877,  the  only  one  to  which  we  are  referred  in  this 
connection,  can  have  no  application.  That  act  provides  "that  all 
railroad  companies  in  this  state,  carrying  passengers  or  freight,  shall, 
and  they  are  hereby  required  to,  build  and  maintain  depots  for  the 
comfort  of  passengers,  and  for  the  protection  of  shippers  of  freight, 
where  such  railroad  companies  are  in  the  practice  of  receiving  and 
delivering  passengers  and  freight,  at  all  towns  and  villages  on  the 
line  of  their  roads  having  a  population  of  five  hundred  or  more." 
2  Starr  &,  C.  St.  1924.  While  it  is  true  that  Upper  Alton  is  a  town 
having  a  population  of  more  than  500,  it  aftirmativel}^  appears  that 
it  is  not  a  place  where  the  defendant  has  been  in  the  practice  of  re- 
ceiving and  delivering  passengers  and  freight,  and  so  is  not  within 
the  provisions  of  said  act.  The  petition  seeks  to  have  the  defendant 
compelled  to  establish  a  station  where  none  has  heretofore  existed, 
while  the  statute  merely  requires  the  erection  of  suitable  depot 
buildings  at  places  where  the  railway  company  has  already  located  its 
stations,  and  is  in  the  practice  of  receiving  and  discharging  jjassen- 
gers  and  freight.  In  point  of  fact,  the  attorney-general,  in  his  argu- 
ment upon  the  rehearing,  admits  that  there  is  no  statute  ui^on  which 
his  prayer  for  a  mandamus  can  be  based;  the  position  now  taken  by 
him  being  that  upon  the  facts  alleged  in  the  petition  and  admitted 
by  the  demurrer,  the  legal  duty  on  the  part  of  the  defendant  to 
establish  a  freight  and  passenger  station  on  its  lino  of  railway  in  the 
town  of  Upper  Alton  arises  by  virtue  of  the  principles  of  the  common 
law. 

It  is  undoubtedly  the  rule  that  railway  companies,  in  the  absence  of 
statutory  provisions  limiting  and  restricting  their  powers,  are  vested 
with  a  very  broad  discretion  in  the  matter  of  locating,  constructing, 
and  operating  their  railways,  and  of  locating  and  maintaining  their 
freight  and  passenger  stations.  This  discretion,  however,  is  not 
absolute,  but  is  subject  to  the  condition  that  it  must  be  exercised 
in  good  faith,  and  with  a  due  regard  to  the  necessities  and  conven- 
ience of  the  public.  Railway  companies,  though  private  corporations, 
are  engaged  in  a  business  in  which  the  public  have  an  interest,  and 
(in  which  such  companies  are  public  servants,  and  amenable  as  such. 
This  doctrine  has  been  repeatedly  announced  by  this  and  other 
courts.  Thus,  in  Marsh  v.  Railroad  Co.,  64  111.  414,  which  was  a 
bill  for  the  specific  performance  of  a  contract  by  which  the  railway 
company  agreed  to  locate  its  passenger  and  freight  depots  at  a  par- 
ticular point  in  a  certain  town,  and  at  no  other  point  in  said  town, 

6 


66  PEOPLE    V.   CHICAGO    AND    ALTON    RAILROAD. 

"we  said:  "This  is  not  a  case  which  concerns  merely  the  private  inter- 
ests of  two  suitors.  It  is  a  matter  where  the  public  interest  is  in- 
volved. Railroad  companies  are  incorporated  by  authority  of  law, 
not  for  the  promotion  of  mere  private  ends,  but  in  view  of  the  public 
good  they  subserve.  It  is  the  circumstance  of  public  use  which 
justifies  the  exercise  on  their  behalf  of  the  right  of  eminent  domain 
in  the  taking  of  private  property  for  the  purpose  of  their  construction. 
They  have  come  to  be  almost  a  public  necessity;  the  general  welfare 
being  largely  dependent  upon  these  modes  of  intercommunication, 
and  the  manner  of  carrying  on  their  operations."  In  the  same  case, 
in  holding  that  the  contract  there  in  question  ought  not  to  be  specifi- 
cally enforced,  we  further  said:  "Railroad  companies,  in  order  to 
fulfil  one  of  the  ends  of  their  creation,  —  the  promotion  of  the  public 
welfare,  — should  be  left  free  to  establish  and  re-establish  their  depots 
wheresoever  the  accommodation  of  the  wants  of  the  public  may 
require." 

In  Railway  Co.  i\  People,  120  111.  200,  which  was  a  petition  for  a 
mandamus  to  compel  the  railway  company  to  repair,  generally,  a 
certain  portion  of  its  road,  and  to  increase  its  passenger  trains 
thereon,  we  said:  "There  can  be  no  doubt  of  the  duty  of  a  railway 
company  to  keep  its  road  in  a  reasonable  state  of  repair,  and  in  a  safe 
condition.  Nor  is  there  any  doubt  of  its  duty  to  so  operate  it  as  to 
afford  adequate  facilities  for  the  transaction  of  such  business  as  may 
be  offered  it,  or  at  least  reasonably  be  expected.  .  .  .  The  company, 
however,  is  given,  as  it  should  be,  a  very  large  discretion  in  deter- 
mining all  questions  relating  to  the  equipment  and  operation  of  its 
road;  hence  courts,  as  a  general  rule,  will  not  interfere  with  the 
management  of  railways  in  these  respects,  except  where  the  act  sought 
to  be  enforced  is  specific,  and  the  right  to  its  performance  in  the 
manner  proposed  is  clear  and  undoubted." 

It  is  in  recognition  of  the  paramount  duty  of  railway  companies  to 
establish  and  maintain  their  depots  at  such  points,  and  in  such  man- 
ner, as  to  subserve  the  public  necessities  and  convenience  that  it  has 
been  held  by  all  the  courts,  with  very  few  exceptions,  that  contracts 
materially  limiting  their  power  to  locate  and  relocate  their  depots  are 
against  public  policy,  and  therefore  void.  Railroad  Co.  v.  Mathers, 
71  111.  592;  Railroad  Co.  v.  Mathers,  104  111.  257;  Bestor  v.  Wathen, 
60  111.  138;  Linder  v.  Carpenter,  62  111.  309;  Railroad  Co.  v.  Ryan, 
11  Kas.  602;  Railroad  Co.  v.  Seely,  45  Mo.  212;  Holladay  v.  Patter- 
son, 5  Or.  177;  Tayl.  Corp.  §  162,  and  authorities  cited. 

We  have  now  to  consider  whether  in  the  light  of  the  principles 
above  laid  down,  a  right  to  the  relief  prayed  for  is  sufficiently  shown 
by  the  petition.  There  can  be  no  doubt  that  the  act  sought  to  be 
enforced  (the  establishment  and  maintenance  of  a  freight  and  passen- 
ger station  on  the  defendant's  line  of  railway  at  a  convenient  point 
within  the  town  of  Upper  Alton)  is  suflflciently  specific  to  be  enforced 
by  mandamus;  and  it  only  remains  to  be  seen  whether  the  right  to 


PEOPLE   V.   CHICAGO    AND   ALTON    RAILROAD.  67 

liave  its  performance  enforced  is  shown  to  be  clear  and  undoubted. 
It  should  be  observed  that  there  is  no  controversy  as  to  the  facts;  the 
allegations  of  the  petition  being,  for  all  the  purposes  of  this  appeal, 
conclusively  admitted  by  the  demurrer. 

The  petition  undertakes  to  show  the  public  importance  and  neces- 
sity of  the  station  asked  for  in  two  ways;  First,  by  alleging  the 
facts  and  circumstances  which  tend  to  prove  it;  and,  secondly,  by 
directly  averring  it.  It  cannot  be  doubted,  we  think,  that  the  facts 
alleged  make  out  a  clear  and  strong  case  of  public  necessity.  They 
show  that  Upper  Alton  is  a  town  of  over  1,800  inhabitants,  situated 
on  the  line  of  the  defendant's  railway  about  midway  between  two 
other  stations  seven  miles  apart.  The  residents  of  the  town  and 
vicinity  are  shown  to  be  possessed  of  at  least  the  ordinary  inclination 
to  travel  by  railway,  and  it  is  averred  that  many  of  them  have 
occasion  and  desire  to  travel  by  the  defendant's  railway  between 
Upper  Alton  and  other  points  on  the  line  of  said  railway.  Various 
manufacturing  and  other  business  enterprises  are  shown  to  be  carried 
on  within  the  town,  creating  a  necessity  for  the  use  of  said  railway' 
for  the  transportation  of  manufactured  articles,  merchandise,  and  other 
freights.  To  avail  themselves  of  transportation  upon  trains  which 
pass  by  their  doors,  the  inhabitants  of  Upper  Alton  are  compelled  to 
go  and  transport  their  freights  b}^  other  conveyances  to  a  neighboring 
town  about  three  and  one-half  miles  away.  Then,  as  we  have  already 
said,  the  petition  directly  avers,  and  the  demurrer  admits,  that  the 
accommodation  of  the  public  living  in  and  near  said  town  requires, 
and  long  has  required,  the  establishment  of  a  passenger  and  freight 
depot  on  the  line  of  its  road  within  said  town.  Unless,  then,  there 
is  some  explanation  for  the  course  pursued  by  the  defendant  which 
the  record  does  not  give,  we  cannot  escape  the  conviction  that  its 
conduct  in  the  premises  exhibits  an  entire  want  of  good  faith  in  its 
efforts  to  perform  its  public  functions  as  a  common  carrier,  and  an 
unwarrantable  disregard  of  the  public  interests  and  necessities.  It 
cannot  be  admitted  that  the  discretion  vested  in  the  defendant  in  the 
matter  of  establishing  and  maintaining  its  freight  and  passenger  sta- 
tions extends  so  far  as  to  justify  such  manifest  and  admitted  disre- 
gard of  its  duties  to  the  public. 

We  are  of  the  opinion  that  the  petition  shows  a  clear  and  undoubted 
right  on  the  part  of  the  public  to  the  establishment  and  maintenance 
of  a  freight  and  passenger  station  on  the  line  of  the  defendant's  rail- 
way in  the  town  of  Upper  Alton,  and  it  therefore  follows  that  the 
demurrer  to  the  petition  should  have  been  overruled. 


68  MOBILE   &   OHIO   KAILROAD   V.   PEOPLE. 

MOBILE   &   OHIO   RAILROAD   v.    PEOPLE. 
Supreme  Court  of  Illinois,  1890. 

[132  III.  559  :  24  N.  E.  643.] 

ScHOLFiELD,  J.^  Railway  stations  for  the  receipt  and  discbarge  of 
passengers  and  freight  are  for  the  mutual  profit  and  convenience  of 
the  company  and  the  public.  Their  location  at  points  most  desirable 
for  the  convenience  of  travel  and  business  is  alike  indispensable  to 
the  efficient  operation  of  the  road  and  the  enjoyment  of  it  as  a  high- 
way by  the  public.  Necessarily,  therefore,  the  company  cannot  be 
compelled,  on  the  one  haud,  to  locate  stations  at  points  where  the 
cost  of  maintaining  them  will  exceed  the  profits  resulting  therefrom 
to  the  company,  nor  allowed,  on  the  other  hand,  to  locate  them  so  far 
apart  as  to  practically  deny  to  communities  on  the  line  of  the  road 
reasonable  access  to  its  use.  The  duty  to  maintain  or  continue  sta- 
tions must,  manifestly,  rest  upon  the  same  principle,  and  a  company 
cannot,  therefore,  be  compelled  to  maintain  or  continue  a  station  at  a 
point  where  the  welfare  of  the  company  and  the  country  in  general 
require  that  it  should  be  changed  to  some  other  point.  And  so  we 
have  held  that  a  railway  company  cannot  bind  itself  by  contract 
with  individuals  to  locate  and  maintain  stations  at  particular  points, 
or  to  not  locate  and  maintain  them  at  other  points.  Bestor  v. 
Wathen,  60  111.  138;  Liuder  v.  Carpenter,  62  111.  309;  Marsh  v. 
Railroad  Co.,  64  111.  414;  Railroad  Co.  v.  Mathers,  71  111.  592;  Same 
Case  again  in  104  111.  257;  Snell  v.  Pells,  113  111.  145.  The  power 
of  election  in  the  location  of  the  line  of  the  railway  referred  to  in 
People  r.  Louisville  &  N.  R.  Co.,  120  111.  48,  results  from  the  fran- 
chise granted  by  the  charter  to  exercise  the  right  of  eminent  domain, 
and  is  therefore  totally  different  from  the  power  of  locating  stations, 
which,  from  its  very  nature,  is  a  continuing  one.  And  so  we  said  in 
Marsh  v.  Railroad  Co.,  siqjra^  where  a  bill  had  been  filed  for  the  spe- 
cific performance  of  a  contract  to  locate  and  maintain  a  station  at  a 
particular  part:  "Railroad  companies,  in  order  to  fulfil  one  of  the 
ends  of  their  creation  —  the  promotion  of  the  public  welfare  — 
should  be  left  free  to  establish  and  re-establish  their  depots  whereso- 
ever the  accommodation  of  the  wants  of  the  public  may  require." 
And  so,  again,  we  said  in  Railroad  Co.  v.  Mathers,  svpra  :  "When- 
ever the  public  convenience  requires  that  a  station  on  a  railroad 
should  be  established  at  a  particular  point,  and  it  can  be  done  without 
detriment  to  the  interests  of  the  stockholders  of  the  company,  the 
law  authorizes  it  to  be  established  there,  and  no  contract  between  a 
board  of  directors  and  individuals  can  be  allowed  to  prohibit  it." 
And  in  the  very  recent  case  of  People  v.  Chicago  &  A.  R.  Co.,  130 
111.  175,  where  we  awai'ded  a  mandamus  commanding  the  location  and 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


NORTHERN    PACIFIC    RAILROAD   V.   WASHINGTON.  69 

maintaining  of  a  station  at  a  point  where  no  station  had  before  been 
located  and  maintained,  we  said:  "It  is  undoubtedly  the  rule  that 
railway  companies,  in  the  absence  of  statutory  provisions  limiting 
and  restricting  their  powers  are  vested  with  a  very  broad  discretion 
in  the  matter  of  locating,  constructing,  and  operating  their  railways, 
and  of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  con- 
dition that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public." 

The  rule  has  been  so  often  announced  by  this  court  that  it  is 
unnecessary  to  cite  the  cases;  that  a  mandavivs  will  never  be  awarded 
unless  the  right  to  have  the  thing  done  which  is  sought  is  clearly 
established.  If  the  right  is  doubtful,  the  writ  will  be  refused.  The 
burden  was  on  the  relator  to  prove  a  case  authorizing  the  issuing  of 
the  writ,  and  in  our  opinion  that  proof  has  not  been  made.  .  .  . 
The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  to  that  court  with  direction  to  enter  judgment  for  the 
respondent. 


NORTHERN   PACIFIC   RAILROAD   v.    WASHINGTON. 
Supreme  Court  of  the  United  States,  1892. 

[142  U.  S.  492.] 

A  petition  in  the  name  of  the  Territory  of  Washington,  at  the  rela- 
tion of  the  prosecuting  attorney  for  the  county  of  Yakima  and  four 
other  counties  in  the  territory,  was  filed  in  the  District  Court  of  the 
fourth  judicial  district  of  the  territory  on  February  20,  1885,  for  a 
mandamus  to  compel  the  Northern  Pacific  Railroad  Company  to 
erect  and  maintain  a  station  at  Yakima  City,  on  the  Cascade  branch 
of  its  railroad,  extending  from  Pasco  Junction,  on  the  Columbia 
River,  up  the  valley  of  the  Yakima  River  and  through  the  county  of 
Yakima,  towards  Puget  Sound,  and  to  stop  its  trains  there  to  receive 
and  deliver  freight,  and  to  receive  and  let  off  passengers.^ 

Ml'.  Justice  Gray,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  Court. 

A  writ  of  mandamus  to  compel  a  railroad  corporation  to  do  a  par- 
ticular act  in  constructing  its  road  or  buildings,  or  in  running  its 
trains,  can  be  issued  only  when  there  is  a  specific  legal  duty  on  its 
part  to  do  that  act,  and  clear  proof  of  a  breach  of  that  duty. 

If,  as  in  Railroad  v.  Hall,  91  U.  S.  343,  the  charter  of  a  railroad 
corporation  expressly  requires  it  to  maintain  its  railroad  as  a  contin- 
uous line,  it  may  be  compelled  to  do  so  by  mandamus.  So  if  the 
charter  requires  the  corporation  to  construct  its  road  and  to  run  its 
cars  to  a  certain  point  on  tide-water  (as  was  held  to  be  the  case  in 

1  Part  of  the  statement  of  the  case  is  omitted.  —  Ed. 


70  NORTHERN    PACIFIC   RAILROAD   V.   WASHINGTON. 

State  V.  Railroad,  29  Conn.  538),  and  it  has  so  constructed  its  road 
and  used  it  for  years,  it  may  be  compelled  to  continue  to  do  so. 
And  mandamus  will  lie  to  compel  a  corporation  to  build  a  bridge  in 
accordance  with  an  express  requirement  of  statute.  Eailwaj'  v.  Mis- 
sissippi, 112  U.  S.  12;  People  c.  Railroad,  70  N.  Y.  569. 

But  if  the  charter  of  a  railroad  corporation  simply  authorizes  the 
corporation,  without  requiring  it,  to  construct  and  maintain  a  railroad 
to  a  certain  point,  it  has  been  held  that  it  cannot  be  compelled  by 
mcmdamus  to  complete  or  to  maintain  its  road  to  that  point  when  it 
would  not  be  remunerative.  Railway  Co.  v.  Queen,  1  El.  &  Bl. 
858;  Id.  874;  Com.  c.  Railroad,  12  Gray,  180;  State  v.  Railroad,  18 
Minn.  40. 

The  difficulties  in  the  way  of  issuing  a  mandamus  to  compel  the 
maintenance  of  a  railroad  and  the  running  of  trains  to  a  terminus 
fixed  by  the  charter  itself  are  much  increased  when  it  is  sought  to 
compel  the  corporation  to  establish  or  to  maintain  a  station  and  to 
stop  its  trains  at  a  particular  place  on  the  line  of  its  road.  The  loca- 
tion of  stations  and  warehouses  for  receiving  and  delivering  passen- 
gers and  freight  involves  a  comprehensive  view  of  the  interests  of 
the  public,  as  well  as  of  the  corporation  and  its  stockholders,  and  a 
consideration  of  many  circumstances  concerning  the  amount  of  popu- 
lation and  business  at,  or  near,  or  within  convenient  access  to  one 
point  or  another,  which  are  more  appropriate  to  be  determined  by 
the  directors,  or,  in  case  of  abuse  of  their  discretion,  by  the  legis- 
lature, or. by  administrative  boards  intrusted  by  the  legislature  with 
that  duty,  than  by  the  ordinary  judicial  tribunals. 

The  defendant's  charter,  after  authorizing  and  empowering  it  to 
locate,  construct,  and  maintain  a  continuous  railroad  "  by  the  most 
eligible  route,  as  shall  be  determined  b}'  said  company,"  within  limits 
described  in  the  broadest  way,  both  as  to  the  terminal  points  and  as 
to  the  course  and  direction  of  the  road,  and  vesting  it  with  "all  the 
powers,  privileges,  and  immunities  necessary  to  carry  into  effect  the 
purposes  of  this  act  as  herein  set  forth,"  enacts  that  the  road  "shall  be 
constructed  in  a  substantial  and  w-orkmanlike  manner,  with  all  the 
necessary  draws,  culverts,  bridges,  viaducts,  crossings,  turnouts, 
stations,  and  watering  places,  and  all  other  appurtenances."  The 
words  last  quoted  are  but  a  general  expression  of  what  would  be 
otherwise  implied  by  law,  and  cover  all  structures  of  every  kind 
needed  for  the  completion  and  maintenance  of  the  railroad.  They 
cannot  be  construed  as  imposing  any  specific  duty,  or  as  controlling 
the  discretion  in  these  respects  of  a  corporation  intrusted  with  such 
large  discretionary  powers  upon  the  more  important  questions  of  the 
course  and  the  termini  of  its  road.  The  contrast  between  these  gen- 
eral words  and  the  specific  requirements,  which  follow  in  the  same 
section,  that  the  rails  shall  be  manufactured  from  American  iron, 
and  that  "a  uniform  gauge  shall  be  established  throughout  the  entire 
length  of  the  road,"  is  significant. 


NORTHERN    PACIFIC    RAILROAD   V.    WASHINGTON.  71 

To  hold  that  the  directors  of  this  corporation,  in  determining  the 
number,  place,  and  size  of  its  stations  and  other  structures,  having 
regard  to  the  public  convenience  as  well  as  to  its  own  pecuniary 
interests,  can  be  controlled  by  the  courts  by  writ  of  mandamus,  would 
be  inconsistent  with  many  decisions  of  high  authority  in  analogous 
cases. 

The  constitution  of  Colorado,  of  1876,  art.  15,  §  4,  provided  that 
"all  railroads  shall  be  public  highways,  and  all  railroad  companies 
shall  be  common  carriers;"  and  that  "every  railroad  company  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any  other 
railroad."  Section  6  of  the  same  article  was  as  follows:  "All  individ- 
uals, associations,  and  corporations  shall  have  equal  rights  to  have 
persons  and  property  transported  over  any  railroad  iu  this  state,  and 
no  undue  or  unreasonable  discrimination  shall  be  made  in  charges  or 
facilities  for  transportation  of  freight  or  passengers  within  the  state, 
and  no  railroad  company,  nor  any  lessee,  manager,  or  employee 
thereof,  shall  give  any  preference  to  individuals,  associations,  or 
corporations  in  furnishing  car  or  motive  power."  The  General  Laws 
of  Colorado,  of  1877,  c.  19,  §  111,  authorized  every  i-ailroad  company 
"to  cross,  intersect,  or  connect  its  railways  with  any  other  railway," 
"to  receive  and  convey  persons  and  property  on  its  railway,"  and  "to 
erect  and  maintain  all  necessary  and  convenient  buildings  and  sta- 
tions, fixtures  and  machinery,  for  the  convenience,  accommodation, 
and  use  of  passengers,  freights,  and  business  interests,  or  which  may 
be  necessary  for  the  construction  or  operation  of  said  railway." 
This  court  held  that  section  6  of  article  15  of  the  constitution  of 
Colorado  was  only  declaratory  of  the  common  law;  that  the  right 
secured  by  section  4  to  connect  railroads  was  confined  to  their  con- 
nection as  physical  structures,  and  did  not  imply  a  connection  of 
business  with  business;  and  that  neitlier  the  common  law,  nor  the 
constitution  and  statutes  of  Colorado,  compelled  one  railroad  corpora- 
tion to  establish  a  station  or  to  stop  its  cai-s  at  its  junction  with  the 
railroad  of  another  corporation,  although  it  had  established  a  union 
station  with  the  connecting  railroad  of  a  third  corporation,  and  had 
made  provisions  for  the  ti-ansaction  there  of  a  joint  business  with 
that  corporation.  Chief  Justice  Waite,  in  delivering  the  opinion, 
said:  "No  statute  requires  that  connected  roads  shall  adopt  joint 
stations,  or  that  one  railroad  company  shall  stop  at  or  make  use  of 
the  station  of  another.  Each  company  in  the  state  has  the  legal 
right  to  locate  its  own  stations,  and,  so  far  as  statutory  regulations 
are  concerned,  is  not  required  to  use  any  other.  A  railroad  comj^any 
is  prohi))ited,  both  by  the  common  law  and  by  the  constitution  of 
Colorado,  from  discriminating  unreasonably  in  favor  of  or  against 
another  company  seeking  to  do  business  on  its  road;  but  that  does 
not  necessarily  imply  that  it  must  stop  at  the  junction  of  one  and 
interchange  business  there  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  couuecting  busi- 


72  NORTHERN    PACIFIC    RAILROAD    V.    WASHINGTON. 

ness  with  another  company  at  another  place.  A  station  may  be 
established  for  the  special  accommodation  of  a  particular  customer; 
but  we  have  never  heard  it  claimed  that  every  other  customer  could, 
by  a  suit  in  equity,  in  the  absence  of  a  statutory  or  contract  right, 
compel  the  company  to  establish  a  like  station  for  his  special  accom- 
modation at  some  other  place.  Such  matters  are,  and  always  have 
been,  proper  subjects  for  legislative  consideration,  unless  prevented 
by  some  charter  contract;  but,  as  a  general  rule,  remedies  for  in- 
justice of  that  kind  can  only  be  obtained  from  the  legislature.  A 
court  of  chancery  is  not,  any  more  than  is  a  court  of  law,  clothed 
with  legislative  power."  Atchison,  T.  &  S.  F.  R,  Co.  t-.  Denver  & 
N.  O.  R.  Co.,  110  U.  S.  6G7,  681,  G82. 

The  Court  of  Appeals  of  New  York,  in  a  very  recent  case,  refused 
to  grant  a  mamJaiaus  to  compel  a  railroad  corporation  to  construct 
and  maintain  a  station  and  warehouse  of  suttlcient  capacity  to  accom- 
modate passengers  and  freight  at  a  village  containing  1,200  inhabi- 
tants, and  furnishing  to  the  defendant  at  its  station  therein  a  large 
freight  and  passenger  business,  although  it  was  admitted  that  its 
present  building  at  that  place  was  entirely  inadequate;  that  the 
absence  of  a  suitable  one  was  a  matter  of  serious  damage  to  large 
numbers  of  persons  doing  business  at  that  station ;  that  the  railroad 
commissioners  of  the  state,  after  notice  to  the  defendant,  had  adjudged 
and  recommended  that  it  should  construct  a  suitable  building  there 
within  a  certain  time;  and  that  the  defendant  had  failed  to  take  any 
steps  in  that  direction,  not  for  want  of  means  or  abilit}^  but  because 
its  directors  had  decided  that  its  interests  required  it  to  postpone 
doing  so.  The  court,  speaking  by  Judge  Danforth,  while  recogniz- 
ing that  "  a  plainer  case  could  hardly  be  presented  of  a  deliberate 
and  intentional  disregard  of  the  public  interest  and  the  accommoda- 
tion of  the  public,"  y&i  held  that  it  was  powerless  to  interpose,  be- 
cause the  defendant,  as  a  carrier,  was  under  no  obligation,  at  common 
law,  to  provide  warehouses  for  freight  offered,  or  station-houses  for 
passengers  waiting  transportation,  and  no  such  duty  was  imposed 
by  the  statutes  authorizing  companies  to  construct  and  maintain 
railroads  "for  public  use  in  the  conveyance  of  persons  and  property," 
and  to  erect  and  maintain  all  necessary  and  convenient  buildings 
and  stations  "for  the  accommodation  and  use  of  their  passengers, 
freight,  and  business,"  and  because,  under  the  statutes  of  New  York, 
the  proceedings  and  determinations  of  the  railroad  commissioners 
amounted  to  nothing  more  than  an  inquest  for  information,  and  had 
no  effect  beyond  advice  to  the  railroad  company  and  suggestion  to 
the  legislature,  and  could  not  be  judicially  enforced.  The  court 
said:  "  As  the  duty  sought  to  be  imposed  upon  the  defendant  is  not 
a  specific  duty  prescribed  by  statute,  either  in  terms  or  by  reasonable 
construction,  the  court  cannot,  no  matter  how  apparent  the  necessity, 
enforce  its  performance  by  mandamus.  It  cannot  compel  the  erection 
of  a  station-house,  nor  the  enlargement  of  one."     "As  to  that,  the 


NORTHEKN    PACIFIC    RAILROAD   V.   WASHIXGTON.  73 

statute  imports  an  authority  only,  not  a  command,  to  be  availed  of 
at  the  option  of  the  company  in  the  discretion  of  its  directors,  who 
are  empowered  by  statute  to  manage  '  its  affairs,'  among  which  must 
be  classed  the  expenditure  of  money  for  station  buildings  or  otlier 
structures  for  the  promotion  of  the  convenience  of  the  public,  liaving 
regard  also  to  its  own  interest.  With  the  exercise  of  that  discretion 
the  legislature  only  can  interfere.  No  doubt,  as  the  respondent 
urges,  the  court  may  by  viandamus  also  act  in  certain  cases  affecting 
corporate  matters,  but  only  where  the  duty  concerned  is  specific  and 
plainly  imposed  upon  the  corporation."  "Such  is  not  the  case  before 
us.  The  grievance  complained  of  is  an  obvious  one,  but  the  burden 
of  removing  it  can  be  imposed  upon  the  defendant  only  by  legisla- 
tion. The  legislature  created  the  corporation  upon  the  theory  that 
its  functions  should  be  exercised  for  the  public  benefit.  It  may  add 
other  regulations  to  those  now  binding  it,  but  the  court  can  interfere 
only  to  enforce  a  duty  declared  by  law.  The  one  presented  in  this 
case  is  not  of  that  character;  nor  can  it  by  any  fair  or  reasonable 
construction  be  implied."    People  v.  Railroad,  104  N.  Y.  58,  66,  67. 

In  Com.  r.  Railroad,  the  Supreme  Judicial  Court  of  Massachusetts, 
in  holding  that  a  railroad  corporation,  whose  charter  was  subject 
to  amendment,  alteration,  or  repeal  at  the  pleasure  of  the  legislature, 
might  be  required  by  a  subsequent  statute  to  construct  a  station  and 
stop  its  trains  at  a  particular  place  on  its  road,  said:  "If  the  direc- 
tors of  a  railroad  were  to  find  it  for  the  interest  of  the  stockholders 
to  refuse  to  carry  any  freight  or  passengers  except  such  as  they  might 
take  at  one  end  of  the  road  and  carry  entirely  through  to  the  other 
end,  and  were  to  refuse  to  establish  any  way  stations,  or  do  any  way 
business  for  that  reason,  though  the  road  passed  for  a  long  distance 
through  a  populous  part  of  the  state,  this  would  be  a  case  manifestly 
reciuiring  and  authorizing  legislative  interference  under  the  clause 
in  question ;  and  on  the  same  ground,  if  they  refuse  to  provide  rea- 
sonable accommodation  for  the  people  of  any  smaller  locality,  the 
legislature  may  reasonably  alter  and  modify  the  discretionary  power 
which  the  charter  confers  upon  the  directors,  so  as  to  make  the  duty 
to  provide  the  accommodation  absolute.  Whether  a  reasonable 
ground  for  interference  is  presented  in  any  particular  case  is  for  the 
legislature  to  determine,  and  their  determination  on  this  point  must 
be  conclusive."     103  Mass.  254,  258. 

Upon  the  same  principle,  the  Supreme  Judicial  Court  of  Maine 
compelled  a  railroad  corporation  to  build  a  station  at  a  specified 
place  on  its  road  in  accordance  with  an  order  of  railroad  commis- 
sioners, expressly  empowered  by  the  statutes  of  the  state  to  make 
such  an  order,  and  to  apply  to  the  court  to  enforce  it.  Laws  Me. 
1871,  c.   204;  Commissioners  v.  Portland  &  O.  R.  Co.,  63  Me.  270. 

In  Railway  Co.  v.  Commissioners,  a  railway  company  was  held  by 
Lord  Chancellor  Selborne,  Lord  Chief  Justice  Coi.eimdce,  and  Lord 
Justice  Brett,  in  the  English  Court  of  Appeal,  to  be  under  no  obliga- 


74  NORTHERN    PACIFIC   RAILROAD   V.   WASHINGTON. 

tion  to  establish  stations  at  any  particular  place  or  places  unless  it 
thought  fit  to  do  so,  and  was  held  bound  to  afford  improved  facilities 
for  receiving,  forwarding,  and  delivering  passengers  and  goods  at  a 
station  once  established  and  used  for  the  purpose  of  traffic  only  so 
far  as  it  had  been  ordered  to  afford  them  by  the  railway  commis- 
sioners, within  powers  expressly  conferred  by  Act  of  Parliament. 
6  Q.  B.  Div.  586,  592. 

The  decision  in  State  v.  Railroad  Co.,  17  Neb.  647,  cited  in  the 
opinion  below,  proceeded  upon  the  theory  (inconsistent  with  the 
judgments  of  this  court  in  Atchison,  T.  &  S.  F.  E.  Co.  v.  Denver  & 
N.  O.  R.  Co.,  and  of  the  Court  of  Appeals  of  New  York  in  People  v. 
Railroad  Co.,  above  stated)  that,  independently  of  any  statute  re- 
quirements, a  railroad  corporation  might  be  compelled  to  establish  a 
station  and  to  stop  its  trains  at  any  point  on  the  line  of  its  road  at 
which  the  court  thought  it  reasonable  that  it  should. 

The  opinions  of  the  Supreme  Court  of  Illinois,  though  going  fur- 
ther than  those  of  most  other  courts  in  favor  of  issuing  writs  of 
mandamus  to  railroad  corporations,  afford  no  countenance  for  grant- 
ing the  writ  in  the  case  at  bar.  In  People  v.  Railroad  Co.,  120  111. 
48,  a  mandamus  was  issued  to  compel  the  company  to  run  all  its 
passenger  trains  to  a  station  which  it  had  once  located  and  used  in 
a  town  made  a  terminal  point  by  the  charter,  and  which  was  a  county 
seat,  because  the  corporation  had  no  legal  power  to  change  its  loca- 
tion, and  was  required  by  statute  to  stop  all  trains  at  a  county  seat. 
In  People  v.  Railroad  Co.,  130  111.  175,  in  which  a  mandamus  was 
granted  to  compel  a  railroad  company  to  establish  and  maintain  a 
station  in  a  certain  town,  the  petition  for  the  writ  alleged  specific 
facts  making  out  a  clear  and  strong  case  of  public  necessity,  and 
also  alleged  that  the  accommodation  of  the  public  living  in  or  near 
the  town  required,  and  long  had  required,  the  establishment  of  a 
station  on  the  line  of  the  road  within  the  town ;  and  the  decision  was 
that  a  demurrer  to  the  petition  admitted  both  the  specific  and  the 
general  allegations,  and  must  therefore  be  overruled.  The  court,  at 
pages  182,  183,  of  that  case,  and  again  in  Railroad  Co.  v.  People, 
132  111.  559,  571,  said:  "It  is  undoubtedly  the  rule  that  railway  com- 
panies, in  the  absence  of  statutory  provisions  limiting  and  restrict- 
ing their  powers,  are  vested  with  a  very  broad  discretion  in  the 
matter  of  locating,  constructing,  and  operating  their  railways,  and 
of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  condi- 
tion that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public."  But  in  the  latter 
case  the  court  also  said:  "The  company  cannot  be  compelled,  on  the 
one  hand,  to  locate  stations  at  points  where  the  cost  of  maintaining 
them  will  exceed  the  profits  resulting  therefrom  to  the  company,  nor 
allowed,  on  the  other  hand,  to  locate  them  so  far  apart  as  to  practi- 
cally deny  to  communities  on  the  line  of  the  road  reasonable  access  to 


NOKTHERN    PACIFIC    RAILROAD    V.    WASHINGTON.  75 

its  use.  The  duty  to  maintain  or  continue  stations  must  manifestly 
rest  upon  the  same  principle,  and  a  company  cannot,  therefore,  be 
compelled  to  maintain  or  continue  a  station  at  a  point  when  the 
welfare  of  the  company  and  the  community  in  general  requires  that 
it  should  be  changed  to  some  other  point."  Page  570,  '"The  rule 
has  been  so  often  announced  by  this  court  that  it  is  unnecessary  to 
cite  the  cases,  that  a  mandamus  will  never  be  awarded  unless  the 
right  to  have  the  thing  done  which  is  sought  is  clearly  established." 
Page  572.     And  upon  these  reasons  the  writ  was  refused. 

Section  691  of  the  Code  of  Waskington  Territory  of  1881,  follow- 
ing the  common  law,  defines  the  cases  in  which  a  writ  of  mandamus 
may  issue  as  "to  any  inferior  court,  corporation,  board,  officer,  or 
person  to  compel  the  performance  of  an  act  which  the  law  specially 
enjoins  as  a  duty  resulting  from  an  office,  trust,  or  station."  By  the 
same  code,  in  mandamus,  as  in  civil  actions,  issues  of  fact  may  be 
tried  by  a  jury;  the  verdict  may  be  either  general  or  special,  and,  if 
special,  may  be  in  answer  to  questions  submitted  by  the  court;  and 
material  allegations  of  the  plaintiff  not  denied  by  the  answer,  as  well 
as  material  allegations  of  new  matter  in  the  answer  not  denied  in  the 
replication,  are  deemed  admitted,  but  a  qualified  admission  cannot  be 
availed  of  by  the  other  party,  except  as  qualified.  Sections  103, 
240,  242,  694,  696;  Breemer  v.  Burgess,  2  Wash.  T.  290,  296;  Gil- 
dersleeve  v.  Landon,  73  N.  Y.  609.  The  replication  filed  in  this  case, 
not  being  copied  in  the  record  sent  up,  may  be  assumed,  as  most 
favorable  to  the  defendant  in  error,  to  have  denied  all  allegations  of 
new  matter  in  the  answer. 

The  leading  facts  of  this  case,  then,  as  appearing  by  the  special 
verdict,  taken  in  connection  with  the  admissions,  express  or  implied, 
in  the  answer,  are  as  follows:  The  defendant  at  one  time  stopped  its 
trains  at  Yakima  City,  but  never  built  a  station  there,  and,  after  com- 
pleting its  road  four  miles  further,  to  North  Yakima,  established  a 
freight  and  passenger  station  at  North  Yakima,  which  was  a  town  laid 
out  by  the  defendant  on  its  own  unimproved  land,  and  thereupon 
ceased  to  stop  its  trains  at  Yakima  City.  In  consequence,  appar- 
ently, of  this,  Yakima  City,  which  at  the  time  of  filing  the  petition 
for  mandamus  was  the  most  important  town,  in  population  and  Inisi- 
ness,  in  the  county,  rapidly  dwindled,  and  most  of  its  inhabitants 
removed  to  North  Yakima,  which  at  the  time  of  the  verdict  had  be- 
come the  largest  and  most  important  town  in  the  county.  No  other 
specific  facts  as  to  North  Yakima  are  admitted  by  the  parties  or 
found  by  the  jury.  The  defendant  could  build  a  station  at  Yakima 
City,  but  the  cost  of  building  one  would  be  $8,000,  and  the  expense 
of  maintaining  it  $150  a  month,  and  the  earnings  of  the  whole  of 
this  division  of  the  defendant's  road  are  insufficient  to  pay  its  run- 
ning expenses.  The  special  verdict  includes  an  express  finding  (which 
appears  to  us  to  be  of  pure  matter  of  fact,  inferred  from  various  cir- 
cumstances, some  of  which  are  evidently  not  specifically  found,  and 


76  NORTHERN    PACIFIC    RAILROAD   V.   WASHINGTON. 

to  be  in  no  sense,  as  assumed  by  the  court  below,  a  conclusion  of 
law)  that  there  are  other  stations  for  receiving  freight  and  passengers 
between  North  Yakima  and  Pasco  Junction,  which  furnish  sufficient 
facilities  for  the  country  south  of  North  Yakima,  which  must  include 
Yakima  City,  as  well  as  an  equally  explicit  finding  (which  appears 
to  have  been  who'ly  disregarded  by  the  court  below)  that  the  passen- 
.ger  and  freight  traffic  of  the  people  living  in  the  surrounding  country, 
considering  them  as  a  community,  would  be  better  accommodated  by 
a  station  at  North  Yakima  than  by  one  at  Yakima  City.  It  also 
appears  of  record  that,  after  the  verdict  and  before  the  district  court 
awarded  the  writ  of  viandavius^  the  county  seat  was  removed,  pur- 
suant to  an  act  of  the  territorial  legislature,  from  Yakima  City  to 
North  Yakima. 

The  mandamus  prayed  for  being  founded  on  a  suggestion  that  the 
defendant  had  distinctly  manifested  an  intention  not  to  perform  a 
definite  duty  to  the  public,  required  of  it  by  law,  the  petition  was 
rightly  presented  in  the  name  of  the  territory  at  the  relation  of  its 
prosecuting  attorney  (Attorney-General  v.  Boston,  123  Mass.  460, 
479;  Code  Wash.  T.  §  2171);  and  no  demand  upon  the  defendant 
was  necessarj'^  before  applying  for  the  writ  (Com.  v.  Commissioners, 
37  Pa.  St.  237 ;  State  v.  Board,  38  N.  J.  Law,  259 ;  Mottu  v.  Prim- 
rose, 23  Md.  482;  Attornej^-General  v.  Boston,  123  Mass.  460,  477). 

But  upon  the  facts  found  and  admitted  no  sufficient  case  is  made 
for  a  writ  of  m.andamus,  even  if  the  court  could,  under  any  circum- 
stances, issue  such  a  writ  for  the  purpose  set  forth  in  the  petition. 
The  fraudulent  and  wrongful  intent  charged  against  the  defendant  in 
the  petition  is  denied  in  the  answer,  and  is  not  found  by  the  jury. 
The  fact  that  the  town  of  North  Yakima  was  laid  out  by  the  defend- 
ant on  its  own  land  cannot  impair  the  right  of  the  inhabitants  of  that 
town,  whenever  they  settled  there,  or  of  the  people  of  the  surrounding 
country,  to  reasonable  access  to  the  railroad.  No  ground  is  shown 
for  requiring  the  defendant  to  maintain  stations  both  at  Yakima 
City  and  at  North  Yakima;  there  are  other  stations  furnishing  suffi- 
cient facilities  for  the  whole  country  from  North  Yakima  southward 
to  Pasco  Junction;  the  earnings  of  the  division  of  the  defendant's 
road  between  those  points  are  insufficient  to  pay  its  running  expenses; 
and  to  order  the  station  to  be  removed  from  North  Yakima  to  Yakima 
City  would  inconvenience  a  much  larger  part  of  the  public  than  it 
would  benefit,  even  at  the  time  of  the  return  of  the  verdict;  and, 
before  judgment  in  the  district  court,  the  legislature,  recognizing 
that  the  public  interest  required  it,  made  North  Yakima  the  county 
seat.  The  question  whether  a  mandamus  should  issue  to  protect  the 
interest  of  the  public  does  not  depend  upon  a  state  of  facts  existing 
when  the  petition  was  filed,  if  that  state  of  facts  has  ceased  to  exist 
when  the  final  judgment  is  rendered.  In  this  regard,  as  observed  by 
Lord  Chief  Justice  Jervis  in  Railway  Co.  ?».  Queen,  already  cited, 
"there  is  a  very  great  difference  between  an    indictment   for   not 


NORTHEKN    PACIFIC    RAILKOAD   V.   WASHINGTON.  77 

fulfilling  a  public  duty,  and  a  mandamus  commanding  the  party 
liable  to  fulfil  it."  1  El.  &  Bl.  878.  The  court  will  never  order  a 
railroad  station  to  be  built  or  maintained  contrary  to  the  public  in- 
terest.    T.  &  P.  Railway  v.  Marshall,  loG  U.  S.  3U3. 

For  the  reasons  above  stated,  the  judgment  of  the  Supreme  Court 
of  the  territory  must  be  reversed,  and  the  case  remanded,  with  direc- 
tions to  enter  judgment  for  the  defendant,  dismissing  the  petition; 
and,  AVashington  having  been  admitted  into  the  Union  as  a  state  by 
Act  of  Congress  passed  while  this  writ  of  error  was  pending  in  this 
court,  the  mandate  will  be  directed  as  the  nature  of  the  case  requires, 
to  the  Supreme  Court  of  the  state  of  Washington.  Act  Feb.  22,  1889, 
c.  180,  §§  22,  23  (25  St.  682,  683). 

Judgment  reversed^  and  mandate  accordingly. 

Mr.  Justice  Brewer  (with  whom  concurred  Mr.  Justice  Field  and 
Mr.  Justice  Harlan)  dissenting.  I  dissent  from  the  opinion  and 
judgment  in  this  case. 

The  question  is  not  whether  a  railroad  company  can  be  compelled 
to  build  a  depot  and  stop  its  trains  at  any  place  where  are  gathered 
two  or  three  homes  and  families,  nor  whether  courts  can  determine 
at  what  locality  in  a  city  or  town  the  depot  shall  be  placed,  nor  even 
whether,  when  there  are  two  villages  contiguous,  the  courts  may 
determine  at  which  of  the  two  the  company  shall  make  its  stopping- 
place,  or  compel  depots  at  both.  But  the  case  here  presented  is  this: 
A  railroad  company  builds  its  road  into  a  county,  finds  the  county 
seat  already  established  and  inhabited,  the  largest  and  most  pros- 
perous town  in  the  county,  and  along  the  line  of  its  road  for  many 
miles.  It  builds  its  road  to  and  through  that  county  seat.  There  is 
no  reason  of  a  public  nature  why  that  should  not  be  made  a  stopping- 
place.  For  some  reason  undisclosed  —  perhaps  because  that  county 
seat  will  not  pay  to  the  managers  a  bonus,  or  because  they  seek  a 
real-estate  speculation  in  establishing  a  new  town  —  it  locates  its 
depot  on  the  site  of  a  "paper  "  town,  the  title  to  which  it  holds,  contig- 
uous to  this  established  county  seat;  stops  only  at  the  one,  and 
refuses  to  stop  at  the  other;  and  thus,  for  private  interests,  builds  up 
a  new  place  at  the  expense  of  the  old ;  and  for  this  subservience  of  its 
public  duty  to  its  private  interests  we  are  told  that  there  is  in  the 
courts  no  redress';  and  this  because  Congress  in  chartering  this  North- 
ern Pacific  road  did  not  name  Yakima  City  as  a  stopping-place,  and 
has  not  in  terms  delegated  to  the  courts  the  power  to  interfere  in  the 
matter. 

A  railroad  corporation  has  a  public  duty  to  perform  as  well  as  a 
private  interest  to  subserve,  and  I  never  before  believed  that  the 
courts  would  permit  it  to  abandon  the  one  to  promote  the  other. 
Nowhere  in  its  charter  is  in  terms  expressed  the  duty  of  carrying 
passengers  and  freight.  Are  the  courts  impotent  to  compel  the  per- 
formance of   this   duty?     Is  the   duty  of   carrying   passengers   and 


78  JONES   V.    NEWPORT   NEWS    &   MISSISSIPPI    VALLEY   CO. 

freight  any  more  of  a  public  duty  than  that  of  placing  its  depots  and 
stopping  its  trains  at  those  places  which  will  best  accommodate  the 
public?  If  the  state  of  Indiana  incorporates  a  railroad  to  build  a 
road  from  New  Albany  through  Indianapolis  to  South  Bend,  and  that 
road  is  built,  can  it  be  that  the  courts  may  compel  the  road  to  receive 
passengers  and  transport  freight,  but,  in  the  absence  of  a  specific 
direction  from  the  legislature,  are  powerless  to  compel  the  road  to  stop 
its  trains  and  build  a  depot  at  Indianapolis?  I  do  not  so  belittle  the 
power  or  duty  of  the  courts. 


JONES   V.    NEWPORT   NEWS    &   MISSISSIPPI  VALLEY  CO. 

Circuit  Court  of  Appeals,  Sixth  Circuit,  1895. 

[65  Fed.  736.] 

Action  by  H.  M.  Jones  against  the  Newport  News  &  Mississippi 
Valley  Compau}'  for  injury  to  and  discontinuance  of  a  railroad  switch 
to  plaintiff's  warehouse.  A  demurrer  was  sustained  to  that  part  of 
the  petition  which  claimed  damages  for  discontinuance  of  the  switch, 
and  plaintiff  brings  error. 

Taft,  Circuit  Judge. ^  Plaintiff  bases  his  claim  for  damages  — 
First,  on  the  violation  of  an  alleged  common-law  duty;  and,  second, 
on  the  breach  of  a  contract.'^ 

1.  The  proposition  put  forward  on  plaintiff's  behalf  is  that  when  a 
railroad  company  permits  a  switch  connection  to  be  made  between 
its  line  and  the  private  warehouse  of  any  person,  and  delivers  mer- 
chandise over  it  for  years,  it  becomes  part  of  the  main  line  of  the 
railroad,  and  cannot  be  discontinued  or  removed,  and  this  on 
common-law  principles  and  without  the  aid  of  a  statute.  It  may  be 
safely  assumed  that  the  common  law  imposes  no  greater  obligation 
upon  a  common  carrier  with  respect  to  a  private  individual  than  with 
respect  to  the  public.  If  a  railroad  company  may  exercise  its  dis- 
cretion to  discontinue  a  public  station  for  passengers  or  a  public  ware- 
house for  freight  without  incurring  any  liability  or  rendering  itself 
subject  to  judicial  control,  it  would  seem  necessarily  to  follow  that 
it  may  exercise  its  discretion  to  establish  or  discontinue  a  private 
warehouse  for  one  customer. 

In  Northern  Pac.  Ry.  Co.  v.  Washington,  142  U.  S.  492,  it  was 
held  that  a  mavdatnus  would  not  lie  to  compel  a  railroad  company  to 
establish  a  station  and  stop  its  trains  at  a  town  at  which  for  a  time 
it  did  stop  its  trains  and  deliver  its  freight. 

In  Com.  V.  Fitchburg  R.  Co.,  12  Gray,  180,  it  was  attempted  to 
compel  a  railroad  company  to  run  regular  passenger  trains  over  cer- 

1  The  statement  of  facts  is  omitted  from  the  opinion.  —  Ed. 
^  So  much  of  the  case  as  relates  to  this  claim  is  omitted.  —  Ed. 


JONES   V.   NEWPORT   NEWS   &   MISSISSIPPI   VALLEY   CO.  79 

tain  branch  lines  upon  which  they  had  been  run  for  a  long  time,  but 
had  been  discontinued  because  they  were  unreniunerative.  The  court 
held  that  mandaiims  would  not  lie  because  the  maintenance  of  such 
facilities  was  left  to  the  discretion  of  the  directors.^ 

It  is  true  that  the  foregoing  were  cases  of  mandamus,  and  that  the 
court  exercises  a  discretion  in  the  issuance  of  that  writ  which  cannot 
enter  iu.to  its  judgment  in  an  action  for  damages  for  a  breach  of  duty. 
But  the  cases  show  that  the  reason  why  the  writ  cannot  go  is  because 
there  is  no  legal  light  of  the  public  at  common  law  to  have  a  station 
established  at  any  particular  place  along  the  line,  or  to  object  to  a 
discontinuance  of  a  station  after  its  establishment.  They  make  it 
clear  that  the  directors  have  a  discretion  in  the  interest  of  the  public 
and  the  company  to  decide  where  stations  shall  be,  and  where  they 
shall  remain,  and  that  this  discretion  cannot  be  controlled  in  the 
absence  of  statutory  provision.  Such  uncontrollable  discretion  is 
utterly  inconsistent  with  the  existence  of  a  legal  duty  to  maintain  a 
station  at  a  particular  place,  a  breach  of  which  can  give  an  action  for 
damages.  If  the  directors  have  a  discretion  to  establish  and  discon- 
tinue public  stations,  a  fortiori  have  they  the  right  to  discontinue 
switch  connections  to  private  warehouses.  The  switch  connection 
and  transportation  over  it  may  seriously  interfere  with  the  conven- 
ience and  safety  of  the  public  in  its  use  of  the  road.  It  may  much 
embarrass  the  general  business  of  the  company.  It  is  peculiarly 
within  the  discretion  of  the  directors  to  determine  whether  it  does  so 
or  not.  At  one  time  in  the  life  of  the  company,  it  may  be  useful  and 
consistent  with  all  the  legitimate  purposes  of  the  company.  A 
change  of  conditions,  an  increase  in  business,  a  necessity  for  travel 
at  higher  speed,  may  make  such  a  connection  either  inconvenient  or 
dangerous,  or  both.  We  must  therefore  dissent  altogether  from  the 
proposition  that  the  establishment  and  maintenance  of  a  switch  con- 
nection of  the  main  line  to  a  private  warehouse  for  any  length  of  time 
can  create  a  duty  of  the  railroad  company  at  common  law  forever  to 
maintain  it.     There  is  little  or  no  authority  to  sustain  it. 

The  latest  of  the  Illinois  cases  which  are  relied  upon  is  based  upon 
a  constitutional  provision  which  requires  all  railroad  companies 
to  permit  connections  to  be  made  with  their  track,  so  that  the  con- 
signee of  grain  and  any  public  warehouse,  coal  bank,  or  coal  yard 
may  be  reached  by  the  cars  of  said  railroad.  The  supreme  court  of 
that  state  has  held  that  the  railroad  company  has  a  discretion  to  say 
in  what  particular  manner  the  connection  shall  be  made  with  its  main 
track,  but  that  this  discretion  is  exhausted  after  the  completion  of  the 
switch  and  its  use  without  objection  for  a  number  of  j^ears.  Railroad 
Co.  V.  Suffern,  129  III.  274.  But  this  is  very  far  from  holding  that 
there  is  any  common-law  liability  to  maintain  a  side  track  forever 

1  An  extract  from  the  opinion  in  Rv.  v.  Wasliington  is  omitted.  Tlie  Court  also 
cited  Peo.  v.  N.  Y.  L.  E.  &  W.  R.  R.,  l"o4  N.  Y.  58  f  Florida,  C.  &  V.  R.  R.  v.  State, 
31  Fla.  482.  —  Ed. 


80  JONES   V.   NEWPOET   NEWS    &   MISSISSIPPI    VALLEY   CO. 

after  it  has  once  been  established.  The  other  Illinois  cases  (Vincent 
V.  Railroad  Co.,  49  111.  33;  Chicago  &  N.  W.  Ry.  Co.  v.  People,  56  111. 
365)  may  be  distinguished  in  the  same  way.  They  depended  on  stat- 
utory obligations,  and  were  not  based  upon  the  common  law,  though 
there  are  some  remafks  in  the  nature  of  obiter  dicta  which  gives  color 
to  plaintiff's  contention.  But  it  will  be  seen  by  reference  to  Mr. 
Justice  Gray's  opinion,  already  quoted  from,  that  the  Illinois  cases 
have  exercised  greater  power  than  most  courts  in  controlling  the 
discretion  of  railroads  in  the  conduct  of  their  business. 

In  Barre  R.  Co.  v.  Montpelier  &  W.  R.  Co.,  31  Vt.  1,  the  question 
was  one  of  condemnation.  The  law  forbade  one  railroad  compan}^  to 
condemn  the  line  of  another  road,  and  the  question  was  whether  the 
side  tracks  of  the  railroad  company,  which,  with  the  consent  of  the 
owners  of  the  granite  quarry,  ]-an  into  a  quarry  in  which  a  great  busi- 
ness was  done,  were  the  line  of  the  railroad  within  the  meaning  of  the 
statute.  It  was  held  that  they  were  so  far  as  to  impose  obligations 
on  and  create  exemptions  in  favor  of  the  railroad  company  operating 
the  side  tracks.  We  may  concede,  for  the  purpose  of  this  case, 
without  deciding,  that,  as  long  as  a  railroad  company  permits  a  side 
track  to  be  connected  with  its  main  line  for  the  purpose  of  delivering 
merchandise  in  car-load  lots  to  the  owner  of  the  side  track,  the  obli- 
gation of  the  railroad  company  is  the  same  as  if  it  were  delivering 
these  cars  at  its  own  warehouse,  on  its  own  side  track.  But  this  we 
do  not  conceive  to  be  inconsistent  with  the  right  of  the  directors  of 
the  railroad  company,  exercising  their  discretion  in  the  conduct  of 
the  business  of  the  company  for  the  benefit  of  the  public  and  the 
shareholders,  to  remove  a  side- track  connection. 

The  recital  of  the  facts  in  the  petition  in  this  case  is  enough  to  show 
that  the  switch  connection  of  the  plaintiff  was  one  of  probable  or 
possible  danger  to  the  public  using  the  railroad,  and  to  justify  its 
termination  for  that  reason.  It  was  made  on  a  high  fill,  on  the 
approach  to  a  bridge  across  a  stream,  and  the  switch  track  ran  on  to 
a  trestle  15  feet  above  the  ground,  and  terminating  in  the  air.  Even 
if  the  discretion  reposed  in  the  directors  to  determine  where  switch 
connections  shall  be  made  or  removed  were  one  for  the  abuse  of  which 
an  action  for  damages  would  lie,  the  petition  would  be  defective,  be- 
cause it  does  not  attempt  in  any  way  to  negative  the  dangerous  char- 
acter of  the  switch  which  the  facts  stated  certainly  suggest  as  a  good 
ground  for  the  action  of  the  company  complained  of.   .   .   . 

The  judgment  of  the  circuit  court  is  affirmed,  with  costs. 


CHICAGO   AND    NORTHWESTERN    RAILROAD    V.   PEOPLE.  81 

CHICAGO    AND    NORTHWESTERN    RAILROAD   v.   PEOPLE. 
Supreme  Court  of  Illinois,   1870. 

[56  ///.  305.] 

Mr.  Chief  Justice  Lawrence  ck'livered  the  opinion  of  the  Court : 
This  WHS  an  application  ibr  a  nuiudauuis,  on  the  relation  of  the 
owners  of  the  Illinois  River  elevator,  a  grain  warehouse  in  the  cit}'  ot 
Cliicago,  against  the  Cliicago  and  Noi'thwestern  Railroad  Company. 
The  relators  seek  b}'  the  writ  to  eonipel  the  railwa}'  company  to  deliver 
to  said  elevator  whatever  grain  in  bulk  may  be  consigned  to  it  upon 
the  line  of  its  road.  There  was  a  return  duly  made  to  the  alternative 
writ,  a  demurrer  to  the  return,  and  a  judgment  pro  forma  ui)on  the 
demurrer,  directing  the  issuing  of  a  peremptor}-  writ.  From  that  judg- 
ment the  railway  company  has  prosecuted  an  appeal. 

The  facts  as  presented  by  the  record  are  briell}'  as  follows  : 
The  company  has  freight  and  passenger  depots  on  the  west  side  of 
the  north  branch  of  the  Chicago  River,  north  of  Kinzie  Street,  for  the 
use,  as  we  understand  the  record  and  the  maps  which  are  made  a  part 
tliereof,  of  tlie  divisions  known  as  tlie  Wisconsin  and  Milwaukie  divi- 
sions of  the  road,  running  in  a  northwesterl}'  direction.  It  also  has 
depots  on  the  east  side  of  the  north  branch,  for  tlie  use  of  the  Galena 
division,  running  westerl}'.  It  has  also  a  depot  on  the  south  branch 
near  Sixteenth  Street,  which  it  reaches  bj'  a  track  diverging  from  the 
Galena  line  on  the  west  side  of  the  cit}'.  The  map  indicates  a  line 
running  north  from  Sixteentii  Street  the  entire  length  of  West  Water 
Street,  but  we  do  not  understand  the  relators  to  claim  their  elevator 
should  be  approached  by  this  line,  as  the  respondent  has  no  interest  in 
this  line  south  of  Van  Buren  Street. 

Under  an  ordinance  of  the  city,  passed  August  10,  1858,  the  Pitts- 
burgh, Fort  W^ayne,  and  Chicago  Company,  and  the  Cliicago,  St.  Paul, 
and  Fond  Du  Lac  Company  (now  merged  in  the  Chicago  and  North- 
western Company)  constructed  a  track  on  West  Water  Street,  from  Van 
Buren  Street  north  to  Kinzie  Street,  for  the  i)urpose  of  forming  a  con- 
nection between  the  two  roads.  The  Pittsbui'gh,  Fort  Wayne,  and 
Chicago  Compan}'  laid  the  track  from  Van  Buren  to  Randolph  Street, 
and  the  Chicago,  St.  Paul,  and  Fond  Du  Lac  Company,  that  portion 
of  the  track  from  Randolph  north  to  its  own  depot.  These  different 
portions  of  tlie  track  were,  however,  constructed  b}'  tliese  two  com- 
panies, b}'  an  arrangement  between  themselves,  the  precise  character 
of  which  does  not  appear,  but  it  is  to  be  inferred  from  the  record  that 
they  have  a  common  right  to  the  use  of  the  track  from  Van  Buren  Street 
to  Kinzie,  and  do  in  fact  use  it  in  common.  The  elevator  of  the  rela- 
tors is  situated  south  of  Randolph  Street,  and  north  of  Van  Buren,  and 
is  connected  with  the  main  track  by  a  side  track  laid  by  the  Pittsburgh 
Company,  at  the  request  and  exi)ense  of  the  owners  of  the  elevator, 
and  connected  at  each  end  with  the  main  track. 

6 


82  CHICAGO   AND    NOKTHWESTEKN   KAILEOAD   V.    PEOPLE. 

Since  the  10th  of  August,  1866,  the  Chicago  and  Northwestern  Com- 
pany, in  consequence  of  certain  arrangements  and  agreements  on  and 
before  that  chiy  entered  into  between  the  company  and  the  owners  of 
certain  elevators,  known  as  the  Galena,  Northwestern,  Munn  &  Scott, 
Union,  City,  Munger  and  Armor,  and  Wheeler,  has  refused  to  deliver 
grain  in  bulk  to  any  elevator  except  those  above  named.  There  is  also 
in  force  a  rule  of  the  company,  adopted  in  1864,  forbidding  the  carriage 
of  grain  in  bulk,  if  consigned  to  any  particular  elevator  in  Chicago,  thus 
reserving  to  itself  the  selection  of  tlie  warehouse  to  which  the  grain 
should  be  delivered.  The  rule  also  provides  that  grain  in  bags  shall 
be  charged  an  additional  price  for  transportation.  This  rule  is  still  in 
force. 

The  situation  of  these  elevators,  to  which  alone  the  compan}-  will 
deliver  grain,  is  as  follows :  The  Northwestern  is  situated  near  the 
depot  of  the  Wisconsin  division  of  the  road,  north  of  Kinzie  Street ; 
the  Munn  &  Scott  on  West  Water  Street,  between  the  elevator  of  rela- 
tors and  Kinzie  Street ;  the  Union  and  City  near  Sixteenth  Street,  and 
approached  onl}'  by  the  track  diverging  from  the  Galena  division,  on 
the  west  side  of  the  cit}',  already  mentioned  ;  and  the  others  are  on  the 
east  side  of  the  north  branch  of  the  Chicago  River.  The  Munn  &  Scott 
elevator  can  be  reached  onl}'  by  the  line  laid  on  West  Water  Street, 
under  the  city  ordinance  already  mentioned  ;  and  the  elevator  of  rela- 
tors is  reached  in  the  same  way,  being  about  four  and  a  half  blocks 
further  south.  The  line  of  the  Galena  division  of  the  road  crosses  the 
line  on  West  AVater  Street  at  nearly  a  right  angle,  and  thence  crosses 
the  North  Branch  on  a  bridge.  It  appears  by  the  return  to  the  writ, 
that  a  car  coming  into  Chicago  on  the  Galena  division,  in  order  to 
reach  the  elevator  of  relators,  would  have  to  be  taken  by  a  drawbridge 
across  the  river  on  a  single  track,  over  which  the  great  m.ass  of  the 
business  of  the  Galena  division  is  done,  then  backed  across  the  river 
again  upon  what  is  known  as  the  Milwaukie  division  of  respondent's 
road,  thence  taken  to  the  track  on  West  Water  Street,  and  the  cars, 
when  unloaded,  could  only  be  taken  back  to  the  Galena  division  by  a 
similar,  liut  reversed,  process,  thus  necessitating  the  passage  of  the 
drawbridge,  with  only  a  single  line,  four  times,  and,  as  averred  in  the 
return  subjecting  the  company  to  great  loss  of  time  and  pecuniary 
damage  in  the  delay  that  would  be  caused  to  its  regular  trains  and 
business  on  that  division. 

This  seems  so  apparent  that  it  cannot  be  fairly  claimed  the  elevator 
of  relators  is  upon  the  line  of  the  Galena  division,  in  any  such  sense  as 
to  make  it  obligatory  upon  the  company  to  deliver  upon  West  Water 
Street  freight  coming  over  that  division  of  the  road.  The  doctrine  of 
the  Vincent  Case,  in  49  111.,  was,  that  a  railway  company  must  deliver 
grain  to  any  elevator  which  it  had  allowed,  by  a  switch,  to  be  connected 
with  its  own  line.  This  rule  has  been  reaffirmed  in  an  opinion  filed  at 
the  present  term,  in  the  case  of  The  Peojile  ex  rel.  Hempstead  v.  The 
Chi.  &  Alton  R.  R.  Company,  55  111.  95,  but  in  the  last  case  we  have 


CHICAGO    AND   NORTHWESTERN   RAILROAD   V.   PEOPLE.  83 

also  held  that  a  railwa}-  company  cannot  be  compelled  to  deliver  be3-ond 
its  own  line  simph'  because  there  are  connecting  tracks  over  which  it 
might  pass  b}'  paying  track  service,  but  which  it  has  never  made  a  part 
of  its  ovvn  line  b}'  use. 

So  far  as  we  can  judge  from  this  record,  and  the  maps  showing  the 
railway  lines  and  connections,  filed  as  a  part  thereof,  the  Wisconsin 
and  Milwaukie  divisions,  running  northwest,  and  the  Galena  division, 
running  west,  though  belonging  to  the  same  corporation  and  having  a 
•common  name,  are,  for  the  purposes  of  transpoitation,  substantially 
diflerent  roads,  constructed  under  different  charters,  and  the  track  on 
West  Water  Street  seems  to  have  been  laid  for  the  convenience  of  the 
Wisconsin  and  Milwaukie  divisions.  It  would  be  a  harsh  and  unrea- 
sonable application  of  the  rule  announced  in  the  Vincent  Case,  and  a 
great  extension  of  the  rule  beyond  anything  said  in  that  case,  if  we 
were  to  hold  that  these  relators  could  compel  the  company  to  deliver  at 
their  elevator  grain  which  has  been  transported  over  the  Galena  divi- 
sion, merel}-  because  the  delivery  is  physically  possible,  though  causing 
great  expense  to  the  company  and  a  great  derangement  of  its  general 
business,  and  though  the  track  on  West  Water  Street  is  not  used  by 
the  company  in  connection  with  the  business  of  the  Galena  division. 

What  we  have  said  disposes  of  the  case  so  far  as  relates  to  the 
deliver}'  of  grain  coming  over  the  Galena  division  of  respondent's  road. 
As  to  such  grain,  the  mandamus  should  not  have  been  awarded. 

When,  however,  we  examine  the  record  as  to  the  connection  between 
the  relators'  elevator  and  the  Wisconsin  and  Milwaukie  divisions  of 
respondent's  road,  we  find  a  very  different  state  of  facts.  The  track  on 
West  Water  Street  is  a  direct  continuation  of  the  line  of  the  Wisconsin 
and  Milwaukie  division  ;  cars  coming  on  this  track  from  these  divisions 
do  not  cross  the  river.  Tlie  Munn  &  Scott  elevator,  to  which  the  re- 
spondent delivers  grain,  is,  as  already  stated,  upon  a  side  track  con- 
nected with  this  track.  The  respondent  not  only  uses  this  track  to 
deliver  grain  to  the  Munn  &  Scott  elevator,  but  it  also  delivers  lumber 
and  other  freight  upon  this  track,  thus  making  it  not  only  legally,  but 
actually,  by  positive  occupation,  a  part  of  its  road.  The  respondent, 
in  its  return,  admits  in  explicit  terms,  that  it  has  an  equal  interest  with 
the  Pittsburgh,  Fort  Wayne,  and  Chicago  Railroad  in  the  track  laid  in 
West  Water  Street.  It  also  admits  its  use;  and  the  onh'  allegation 
made  in  the  return  for  the  purpose  of  showing  any  difficulty  in  deliver- 
ing to  relators'  elevator  the  grain  consigned  thereto  from  the  Wisconsin 
and  Milwaukie  divisions,  is,  that  those  divisions  connect  with  the  line 
on  West  Water  Street  only  by  a  single  track,  and  that  respondent  can- 
not deliver  bulk  grain  or  other  freight  to  the  elevator  of  relators,  even 
from  those  divisions,  without  large  additional  expense,  caused  b}'  the 
loss  of  the  use  of  motive  power,  labor  of  servants,  and  loss  of  use  of 
cars,  while  the  same  are  being  delivered  and  unloaded  at  said  elevator 
and  brought  back.  As  a  reason  for  non-deliver}*  on  the  ground  of  diffi- 
culty, this  is  simply  frivolous.     The  expense  caused  by  the  loss  of  the 


84  CHICAGO    AND    NORTHWESTEKN    RAILROAD   V.    PEOPLE. 

use  of  motive  power,  labor,  and  cars,  while  the  latter  are  being  taken 
to  their  place  of  destination  and  unloaded,  is  precisely-  the  expense  for 
which  the  corapau}'  is  paid  its  freight.  It  has  constructed  tliis  line  on 
West  Water  Street,  in  order  to  do  the  ver\-  work  which  it  now,  in 
general  terms,  pronounces  a  source  of  large  additional  expense  ;  yet  it 
does  not  find  the  alleged  additional  expense  an  obstacle  in  the  wa\'  of 
delivering  grain  upon  this  track  at  the  warehouse  of  Munn  &  Scott,  or 
delivering  other  freights  to  other  persons  than  the  relators.  Indeed,  it 
seems  evident,  from  the  diagrams  attached  to  the  record,  tliat  three  of 
the  elevators,  to  which  the  respondent  delivers  grain,  are  more  difficult 
of  access  than  that  of  the  relators,  and  three  of  the  others  have  no 
appreciable  advantage  in  that  respect,  if  not  placed  at  a  decided  dis- 
advantage by  the  fact  that  they  can  be  reached  only  by  crossing  the 
river. 

We  presume,  however,  from  the  argument  that  the  respondent's 
counsel  place  no  reliance  upon  this  allegation  of  additional  expense,  so 
far  as  the  Wisconsin  and  Milwaukie  divisions  are  concerned.  Thoy 
rest  the  defence  on  the  contracts  made  between  the  companj-  and  tiie 
elevators  above  named,  for  exclusive  delivery  to  the  latter  to  the  extent 
of  their  capacit}-.  This  brings  us  to  the  most  important  question  in  the 
case.  Is  a  contract  of  this  character  a  valid  excuse  to  the  compan}-  for 
refusing  to  deliver  grain  to  an  elevator,  upon  its  lines  and  not  a  party 
to  the  contract,  to  which  such  grain  has  been  consigned? 

In  the  oral  argument  of  this  case  it  was  claimed,  by  counsel  for  the 
respondent,  that  a  railway  company  was  a  mere  private  corporation, 
and  that  it  was  the  right  and  duty  of  its  directors  to  conduct  its  busi- 
ness merely  with  reference  to  the  pecuniary  interests  of  the  stockholders. 
The  printed  arguments  do  not  go  to  this  extent,  in  terms,  but  they  are 
colored  throughout  by  the  same  idea,  and  in  one  of  them  we  find  coun- 
sel applying  to  the  Supreme  Court  of  the  United  States,  and  the  Supreme 
Court  of  Pennsylvania,  language  of  severe,  and  almost  contemptuous, 
disparagement,  because  those  tribunals  have  said  that  "  a  common  car- 
rier is  in  the  exercise  of  a  sort  of  public  office."  N.  J.  Steam  Nav.  Co. 
V.  Merch.  Bank,  6  How.  381  ;  Sanford  v.  Railroad  Co.,  24  Pa.  380.  If 
the  language  is  not  critically  accurate,  perhaps  we  can  pardon  these 
courts,  when  we  find  that  substantiality  the  same  language  was  used 
by  Lord  Holt,  in  Coggs  v.  Bernard,  2  Lord  Raymond,  909,  the  leading 
case  in  all  our  books  on  the  subject  of  bailments.  The  language  of  that 
case  is,  that  the  common  carrier  "  exercises  a  public  emploj'ment." 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is  immate- 
rial whether  or  not  these  corporations  can  be  properly  said  to  be  in  the 
exercise  of  "  a  sort  of  public  office,"  or  whether  thev  are  to  be  stjied 
private,  or  quasi  public  corporations.  Certain  it  is,  that  they  owe 
some  important  duties  to  the  public,  and  it  only  concerns  us  now  to 
ascertain  the  extent  of  these  duties  as  regards  the  case  made  upon  this 
record. 

It  is  admitted  by  respondent's  counsel  that  railway  companies  are 


CHICAGO    AND    NOKTIIWESTERN   RAILROAD    V.   PEOPLE.  85 

common  carriers,  though  even  that  admission  is  somewhat  griulgingl}' 
made.  Regarded  merely  as  a  common  carrier  at  common  law,  and  in- 
dependently of  any  obligations  imposed  b}'  the  acceptance  of  its  charter, 
it  would  owe  important  duties  to  the  public,  from  which  it  could  not 
release  itself,  except  with  the  consent  of  every  person  who  might  call 
upon  it  to  perform  them.  Among  these  duties,  as  well  defined  and 
settled  as  anything  in  the  law,  was  the  obligation  to  receive  and  carry 
goods  for  all  persons  alike,  without  injurious  discrimination  as  to 
terms,  and  to  deliver  tliem  in  safety  to  the  consignee,  unless  prevented 
by  the  act  of  God  or  the  public  enemy.  These  obligations  grew  out  of 
the  relation  voluntarily  assumed  by  the  carrier  toward  the  public,  and 
the  requirements  of  public  policy,  and  so  important  have  they  been 
deemed  that  eminent  judges  have  often  expressed  their  regret  that 
common  carriers  have  ever  been  permitted  to  vary  their  common-law 
liability,  even  by  a  special  contract  with  the  owner  of  the  goods. 

Regarded,  tlien,  merely  as  a  common  carrier  at  common  law,  the 
respondent  should  not  be  permitted  to  say  it  will  deliver  goods  at  the 
warehouse  of  A  and  B,  but  will  not  deliver  at  the  warehouse  of  C, 
the  latter  presenting  equal  facilities  for  the  discharge  of  freight,  and 
being  accessible  on  respondent's  line. 

But  railway  companies  may  well  be  regarded  as  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the  common 
law,  to  discharge  their  duties  to  the  public  as  common  carriers  fairlv 
and  impartially.  As  has  been  said  by  other  courts,  the  State  has 
endowed  them  with  something  of  its  own  sovereignty,  in  giving  them 
the  right  of  eminent  domain.  By  virtue  of  this  power  they  take  the 
lands  of  the  citizen  against  his  will,  and  can,  if  need  be,  demolish  his 
house.  Is  it  supposed  these  great  powers  were  granted  merely  for  the 
private  gain  of  the  corporators?  On  the  contrary,  we  all  know  the 
companies  were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel  and 
commerce.  If,  then,  a  common  carrier  at  common  law  came  under 
obligations  to  the  public  from  which  he  could  not  discharge  himself  at 
his  own  volition,  still  less  should  a  railway  company  be  permitted  to  do 
so,  when  it  was  created  for  the  public  benefit,  and  has  received  from 
the  public  such  extraordinary  privileges.  Railway  charters  not  only 
give  a  perpetual  existence  and  great  power,  but  the}'  have  been  con- 
stantly recognized  by  the  courts  of  this  country  as  contracts  between 
the  companies  and  the  State,  imposing  reciprocal  obligations. 

The  courts  have  always  been,  and  we  trust  always  will  be,  ready  to 
protect  these  companies  in  their  chartered  rights,  but.  on  the  other 
hand,  we  should  be  equally  ready  to  insist  that  they  perform  faithfully 
to  the  public  those  duties  which  wei'e  the  object  of  their  chartered 
powers. 

We  are  not,  of  course,  to  be  understood  as  saying  or  intimating  that 
the  legislature,  or  the  courts,  may  require  from  a  railway  company  the 
performance  of  any  and  all  acts  that  might  redound  to  the  public  benefit, 


86  CHICAGO    AND   NOETHWESTERN    RAILROAD   V.   PEOPLE. 

without  reference  to  the  pecuniarj^  welfare  of  the  company  itself.  "We 
hold  simph'  that  it  must  perform  all  those  duties  of  a  common  carrier 
to  which  it  knew  it  would  be  liable  when  it  sought  and  obtained  its 
charter,  and  the  fact  that  the  public  has  bestowed  upon  it  extraordi- 
nar}'  powers  is  but  an  additional  reason  for  holding  it  to  a  complete 
performance  of  its  obligations. 

The  dut\"  sought  to  be  enforced  in  this  proceeding  is  the  delivery  of 
grain  in  bulk  to  the  warehouse  to  which  it  is  consigned,  such  warehouse 
being  on  the  line  of  the  respondent's  road,  with  facilities  for  its  delivery 
equal  to  those  of  the  other  warehouses  at  which  the  company  does 
deliver,  and  the  carriage  of  grain  in  bulk  being  a  part  of  its  regular 
business.  This,  then,  is  the  precise  question  decided  in  the  Vincent 
Case,  in  49  111.,  and  it  is  unnecessary  to  repeat  what  was  there  said. 
We  may  remark,  however,  that,  as  the  argument  of  counsel  necessaril}' 
brought  that  case  under  review,  and  as  it  was  decided  before  the  re- 
organization of  this  court  under  the  new  constitution,  the  court  as  now 
constituted  has  re-examined  that  decision,  and  fully  concurs  therein. 
That  case  is  reall}'  decisive  of  the  present,  so  far  as  respects  grain 
transported  on  the  Wisconsin  and  Milwaukie  divisions  of  respondent's 
road.  The  only  dift'erence  between  tliis  and  the  Vincent  Case  is  in 
the  existence  of  the  contract  for  exclusive  delivery  to  the  favored  ware- 
houses, and  this  contract  can  have  no  effect  when  set  up  against  a 
person  not  a  part}-  to  it,  as  an  excuse  for  not  performing  toward  such 
person  those  duties  of  a  common  carrier  prescribed  by  the  common  law, 
and  declared  by  the  statute  of  the  State. 

The  contract  in  question  is  peculiarh-  objectionable  in  its  character, 
and  peculiarl}'  defiant  of  the  obligations  of  the  respondent  to  the  public 
as  a  common  carrier.  If  the  principle  implied  in  it  were  conceded,  the 
railway'  companies  of  the  State  might  make  similar  contracts  with  indi- 
viduals at  ever\-  important  point  u[)Ou  their  lines,  and  in  regard  to  other 
articles  of  commerce  besides  grain,  and  thus  subject  the  business  of  the 
State  almost  wholly  to  their  control,  as  a  means  of  their  own  emolument. 
Instead  of  making  a  contract  with  several  elevators,  as  in  the  present 
case,  each  road  that  enters  Chicago  might  contract  with  one  alone, 
and  thus  give  to  the  owner  of  such  elevator  an  absolute  and  complete 
monopoly  in  the  handling  of  all  the  grain  that  might  be  transported 
over  such  road.  So,  too,  at  every  important  town  in  the  interior,  each 
road  might  contract  that  all  the  lumber  carried  by  it  should  be  con- 
signed to  a  particular  yard.  How  injurious  to  the  public  would  be  the 
creation  of  such  a  system  of  organized  monopolies  in  the  most  important 
articles  of  commerce,  claiming  existence  under  a  perpetual  charter  from 
the  State,  and,  by  the  sacredness  of  such  charter,  claiming  also  to  set 
the  legislative  will  itself  at  defiance,  it  is  hardl}-  worth  while  to  specu- 
late. It  would  be  difficult  to  exaggerate  the  evil  of  which  such  a 
system  would  be  the  cause,  when  fully  developed,  and  managed  by 
unscrupulous  hands. 

Can  it  be  seriously  doubted  whether  a  contract,  involving  such  a 


CfllCAGO   AND    NORTHWESTEKX   EAILROAD   V.    PEOPLE.  87 

principle,  and  such  results,  is  in  conflict  with  the  duties  which  the 
compan}'  owes  to  the  public  as  a  common  carrier?  The  fact  that  a 
contract  has  been  made  is  reall}'  of  no  moment,  because,  if  the  com- 
pan}'  can  bind  the  public  by  a  contract  of  this  sort,  it  can  do  the  same 
thing  by  a  mere  regulation  of  its  own,  and  say  to  these  relators  that  it 
will  not  deliver  at  their  warehouse  the  grain  consigned  to  them,  because 
it  prefers  to  deliver  it  elsewiiere.  The  contract,  if  vicious  in  itself,  so 
far  from  excusing  the  road,  only  shows  that  the  policy  of  delivering 
grain  exclusively  at  its  chosen  warehouses  is  a  deliberate  policj-,  to  be 
followed  for  a  term  of  years,  during  which  these  contracts  run. 

It  is,  however,  urged  very  strenuously  b}-  counsel  for  the  respondent, 
that  a  common  carrier,  in  the  absence  of  contract,  is  bound  to  carry  and 
deliver  onl}'  according  to  the  custom  and  usage  of  his  business  ;  that  it 
depends  upon  himself  to  establish  such  custom  and  usage  ;  and  that 
the  respondent,  never  having  held  itself  out  as  a  carrier  of  grain  in 
bulk,  except  upon  the  condition  that  it  ma}'  itself  choose  the  consignee, 
this  has  become  the  custom  and  usage  of  its  business,  and  it  cannot  be 
required  to  go  bej'ond  this  limit.  In  answer  to  this  position,  the  fact 
that  the  respondent  has  derived  its  life  and  powers  from  the  people, 
through  the  legislature,  comes  in  with  controlling  force.  Admit,  if  the 
respondent  were  a  private  association,  which  had  established  a  line  of 
wagons,  for  the  purpose  of  carrying  grain  from  the  Wisconsin  boundary 
to  the  elevator  of  Munn  &  Scott  in  Chicago,  and  had  never  offered  to 
carrj'  or  deliver  it  elsewhere,  that  it  could  not  be  compelled  to  depart 
from  the  custom  or  usage  of  its  trade.  Still  the  admission  does  not 
aid  the  respondent  in  this  case.  In  the  case  supposed,  the  carrier 
would  establish  the  terminal  points  of  his  route  at  his  own  discretion, 
and  could  change  them  as  his  interests  might  demand.  He  offers  him' 
self  to  the  public  onl}'  as  a  common  carrier  to  that  extent,  and  he  can 
abandon  his  first  line  and  adopt  another  at  his  own  volition.  If  he 
should  abandon  it,  and,  instead  of  off'ering  to  carry  grain  onl}'  to  the 
elevator  of  Munn  &  Scott,  should  ofTer  to  carr}-  it  generally  to  Chicago, 
then  he  would  clearly  be  obliged  to  deliver  it  to  any  consignee  in 
Chicago,,  to  whom  it  might  be  sent  and  to  whom  it  could  be  delivered, 
the  place  of  deliver}'  being  upon  his  line  of  carriage. 

In  the  case  before  us,  admitting  the  position  of  counsel  that  a  com- 
mon carrier  establishes  his  own  line  and  terminal  points,  the  question 
arises,  at  what  time  and  how  does  a  railway  company  establish  them  ? 
We  answer,  when  it  accepts  from  the  legislature  the  charter  which 
gives  it  life,  and  by  virtue  of  such  acceptance.  That  is  the  point  of 
time  at  which  its  obligations  begin.  It  is  then  that  it  holds  itself  out 
to  the  world  as  a  common  carrier,  whose  business  will  begin  as  soon 
as  the  road  is  constructed  upon  the  line  which  the  charter  has  fixed. 
Suppose  this  respondent  had  asked  from  the  legislature  a  charter  au- 
thorizing it  to  carry  grain  in  bulk  to  be  delivered  only  at  the  elevator 
of  Munn  &  Scott,  and  nowhere  else  in  the  city  of  Chicago.  Can  any 
one  suppose  such  charter  would  have  been  granted  ?     The  supposition  is 


88  CHICAGO   AND   NOETHWESTERN   RAILROAD   V.    PEOPLE. 

preposterous.  But,  instead  of  a  charter  making  a  particular  elevator  the 
tenninus  and  place  of  delivery,  the  legislature  granted  one  which  made 
the  city  of  Chicago  itself  the  terminus,  and  when  this  charter  was  ac- 
cepted there  at  once  arose,  on  the  part  of  the  respondent,  the  corre- 
sponding obligation  to  deliver  grain  at  any  point  within  the  city  of 
Chicago,  upon  its  lines,  with  suitable  accommodations  for  receiving  it, 
to  which  such  grain  might  be  consigned.  Perhaps  grain  in  bulk  was 
not  then  carried  in  cars,  and  elevators  may  not  have  been  largely  intro- 
duced. But  the  charter  was  granted  to  promote  the  conveniences  of 
commerce,  and  it  is  the  constant  dut}-  of  the  respondent  to  adapt  its 
agencies  to  that  end.  When  these  elevators  were  erected  in  Chicago, 
to  which  the  respondent's  line  extended,  it  could  only  carry  out  the 
obligations  of  its  charter  by  receiving  and  delivering  to  each  elevator 
whatever  grain  might  be  consigned  to  it,  and  it  is  idle  to  say  such 
obligation  can  be  evaded  by  the  claim  that  such  delivery  has  not  been 
the  custom  or  usage  of  respondent.  It  can  be  permitted  to  establish 
no  custom  inconsistent  with  the  spirit  and  object  of  its  charter. 

It  is  claimed  by  counsel  that  the  charter  of  respondent  authorizes  it 
to  make  such  contracts  and  regulations  as  might  be  necessary  in  the 
transaction  of  its  business.  But  certainly  we  cannot  suppose  the  legis- 
lature intended  to  authorize  the  making  of  such  rules  or  contracts  as 
would  defeat  the  ver}-  object  it  had  in  view  in  granting  the  charter. 
Tlie  con)pany  can  make  such  rules  and  contracts  as  it  pleases,  not  in- 
consistent with  its  duties  as  a  common  carrier,  but  it  can  go  no  further, 
and  any  general  language  which  its  charter  may  contain  must  neces- 
sarily be  construed  with  that  limitation.  In  the  case  of  The  Cit^-  of 
Chicago  V.  Rumpff,  45  111.  94,  this  court  held  a  clause  in  the  charter, 
giving  the  common  council  the  right  to  control  and  regulate  the  business 
of  slaughtering  animals,  did  not  authorize  the  city  to  create  a  monopoly 
of  the  business,  under  pretence  of  regulating  and  controlling  it. 

It  is  unnecessar}^  to  speak  particularity  of  the  rule  adopted  by  the 
compan}'  in  reference  to  the  transportation  of  grain.  What  we  have 
said  in  regaixl  to  the  contract  applies  equally  to  the  rule. 

The  principle  that  a  railroad  company  can  make  no  Injurious  or 
arbitrary'  discrimination  between  individuals  in  its  dealings  with  the 
public,  not  only  commends  itself  to  our  reason  and  sense  of  justice,  but 
is  sustained  by  adjudged  cases.  In  England,  a  contract  which  admitted 
to  the  door  of  a  station,  within  the  yard  of  a  railway  company,  a  certain 
omnibus,  and  excluded  another  omnibus,  was  held  void.  Harriot  v. 
L.  &  S.  W.  E.  R.  Co.,  1  C.  B.  (N.S.),  498. 

In  Gaston  v.  Bristol  &  Exeter  Railroad  Company,  6  C.  B.  (N.  S.)  641, 
it  was  held,  that  a  contract  with  certain  ironmongers,  to  carry  their 
freight  for  a  less  price  than  that  charged  the  public,  was  illegal,  no 
good  reason  for  the  discrimination  being  shown. 

In  Crouch  v.  The  L.  &  N.  W.  R.  Co.,  14  C.  B.  254,  it  was  held  a  rail- 
way compan}'  could  not  make  a  regulation  for  the  convej'ance  of 
goods  which,  in  practice,  affected  one  individual  only. 


COE    V.    LOUISVILLE    &    NASHVILLE    RAILROAD.  89 

In  Sandford  v.  Railroad  Company,  24  Pa.  382,  the  court  held  that 
the  power  given  in  the  charter  of  a  raihva}'  company  to  regulate  the 
transportation  of  the  road  did  not  give  the  right  to  grant  exclusive 
privileges  to  a  particular  express  corapan}-.  The  court  sa3%  "If  the 
company  possessed  this  power,  it  might  build  up  one  set  of  men  and 
destroy  others  ;  advance  one  kind  of  business  and  break  down  another, 
and  make  even  religion  and  politics  the  tests  in  the  distribution  of  its 
favors.  The  rights  of  the  people  are  not  subject  to  an}'  such  corporate 
control." 

We  refer  also  to  Rogers'  Locomotive  Works  v.  Erie  R.  R.  Co.,  5 
Green,  380,  and  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn.  538. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the  relators 
have  just  cause  of  complaint,  the}'  cannot  resort  to  the  writ  of  manda- 
mus. We  are  of  opinion,  however,  that  they  can  have  an  adequate 
remedy  in  no  other  way,  and  that  the  writ  will  therefore  lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  mandamus 
must  be  reversed,  because  it  applies  to  the  Galena  division  of  respon- 
dent's road,  as  well  as  to  the  Wisconsin  and  Milwaukie  divisions.  If 
it  had  applied  only  to  the  latter,  we  should  have  affirmed  the  judgment. 
The  parties  have  stipulated  that,  in  case  of  reversal,  the  case  shall  be 
remanded,  with  leave  to  the  relators  to  traverse  the  return.  We  there- 
fore make  no  final  order,  but  remand  the  case,  with  leave  to  both  parties 
to  amend  their  pleadings,  if  desired,  in  view  of  what  has  been  said  in 
this  opinion.  Judgment  reversed. 


COE  V.   LOUISVILLE   &   NASHVILLE   RAILROAD. 

Circuit  Court  of  the  United  States,  Middle  District  op 

Tennessee,  1880. 

[3  Fed.  775.] 

Baxter,  C.  J.  The  defendant  corporation  owns  the  Louisville  & 
Nashville  Railroad,  and,  in  virtue  of  its  purchase  of  the  southeastern 
lease  of  the  Nashville  &  Decatur,  and  ownership  of  a  majority  of  the 
capital  stock  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  Com- 
pany, controls  ever}'  railroad  centering  at  Nashville.  It  has,  for  many 
years  past,  been  engaged  in  carrying  such  freights  as  are  usually  trans- 
ported by  rail,  including  live  stock.  Twelve  or  more  years  since,  when 
it  needed  facilities  for  loading  and  delivering  live  stock,  the  complain 
ants  bought  a  lot  contiguous  to  defendant's  depot,  in  Nashville,  at 
S14,000,  and  fitted  it  up  as  a  stock  yard,  at  a  cost  of  816,000  more. 
There  was  no  express  contract  between  complainants  and  defendant  in 
relation  to  the  matter.  But  it  is  clear  that  it  was  a  convenience  to  de- 
fendant's business.  By  the  permission  or  acquiescence  of  defendant 
complainants'  yard  was  connected  with  defendant's  road  by  appropriate 
stock  gaps  and  pens,  whifh  have  been  in  use  by  both  parties  for  more 


90  COE    V.    LOUISVILLE    &    NASHVILLE    RAILROAD. 

than  twelve  years  ;  but  on  the  twenty-fifth  of  March,  1880,  the  defend- 
ant and  the  Nashville,  Chattanooga  &  St.  Louis  Railway  Company 
entered  into  a  contract  with  the  Union  Stock  Yard  Company,  whereby 
the  said  stock-yard  company  stipulated  "  to  erect,  maintain,  and  keep 
in  good  order,"  etc.,  "  a  stock  yard  in  the  city  of  Nasliville,  on  the  line 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,"  outside  the  city 
limits,  and  more  than  a  mile  from  complainants'  yard.  And  the  parties 
of  the  first  part  —  the  railroad  companies —  among  other  things,  agreed 
that  "  they  would  establish  no  other  stock  yard  in  Nashville,"  and  that 
they  would  "deliver,  and  cause  to  be  delivered,  to  said  party  of  the 
second  part  all  live  stock  shipped  over  the  roads  of  tlie  parties  of  the 
first  part,  and  consigned  to  the  city  of  Nashville  ;  the  parties  of  the  first 
part  hereby  agreeing  to  make  this  stock  yard  of  the  party  of  the  second 
part  their  stock  depot  for  said  city,  and  will  not  deliver  at  any  other 
point  or  points  of  the  city,  and  agree  to  deliver  all  live  stock  shipped  to 
said  city  of  Nashville  at  the  yards  of  the  party  of  the  second  part." 

In  furtherance  of  this  contract,  Edward  B.  Stahlman,  defendant's 
traffic  manager,  and  owner  of  So, 000  of  the  capital  stock  of  the  stock- 
yard company,  issued  the  following  order,  addressed  to  defendant's 
agent,  dated  July  10,  1880  :  "  On  the  fifteenth  inst.  there  will  be 
opened  and  ready  for  business  the  stock  yards  erected  by  the  Union 
Stock  Yard  Company,  at  Nashville,  Tenn.  These  yards  have  every 
facility  for  the  proper  handling  and  care  of  live  stock,  and  will  be  con- 
stituted our  stock  delivery  and  forwarding  depots.  Live  stock  from 
and  after  that  date  consigned  to  Nashville  proper,  or  destined  to  any 
points  over  our  line  via  Nashville,  should  be  way-billed  care  of  the 
Union  Stock  Yards  ;  "  and  on  the  twenty-fourth  of  the  same  month 
James  Geddes,  defendant's  superintendent,  sui)plemented  the  foregoing 
order  with  a  notice  to  complainants  in  the  following  words:  "I  am 
directed  by  Mr.  De  Funiak,  general  manager,  to  notify  you  that  after 
the  last  day  of  July,  1880,  no  delivery  of  stock  will  be  made  to  you  at 
our  platform  here,  Nashville  depot,"  to  wit,  the  platform,  gaps,  and 
pens  communicating  with  complainants'  yard,  where  the  defendant  had 
heretofore  delivered  to  them. 

Complainants  remonstrated  against  this  threatened  discrimination 
against  them  and  their  business  ;  but,  being  unable  to  induce  any  change 
in  defendant's  avowed  policy,  filed  their  bill  in  which  they  pray  for  an 
injunction  to  restrain  "  defendant's  agents  and  officers  and  servants 
from  interfering  with  or  in  any  manner  disturbing  the  enjoyment  and 
facilities  now  accorded  to  complainants  by  the  said  defendant  upon  its 
lines  of  railway,  for  the  transaction  of  business  now  carried  on  by  the 
complainants,  and  especially  from  excluding  or  inhibiting  persons  from 
consigning  stock  to  complainants,  and  from  refusing  to  receive  and  trans- 
port stock  from  complainants'  yard,  and  from  interfering  with  or  in  any 
way  disturbing  the  business  of  the  complainants,  and  from  refusing  to 
permit  the  complainants  to  continue  their  business  on  the  same  terras 
as  heretofore."     The  injunction  asked  for  is  both  inhibitory  and  man- 


COE    V.    LOUISVILLE   &   NASHVILLE   EAILROAD.  91 

datory ;  it  seeks  to  prohibit  the  doing  of  threatened  and  alleged 
wrongful  acts,  and  to  compel  defendant  to  continue  the  facilities  and 
accommodations  heretofore  accorded  b}-  defendant  to  complainants ; 
and  the  question  is,  are  complainants  entitled,  preliminarily,  to  the 
relief  prayed  for,  or  any  part  of  it? 

The  facts  suggest  the  very  important  inquiry,  how  far  railroads, 
called  into  being  to  subserve  the  public,  can  be  lawfully  manipulated 
by  those  who  control  them  to  advance,  incidentally,  their  own  private 
interests,  or  depress  the  business  of  particular  individuals  or  localities, 
for  the  benefit  of  other  persons  or  communities.  As  common  carriers 
they  are  by  law  bound  to  receive,  transport,  and  deliver  freights  offered 
for  tiiat  purpose,  in  accordance  with  the  usual  course  of  business.  The 
deliver}',  when  practicable,  must  be  to  the  consignee.  But  the  rule 
which  requires  common  carriers  by  land  to  deliver  to  the  consignee  per- 
sonally at  his  place  of  business,  has  been  somewhat  relaxed  in  favor  of 
said  roads  on  the  ground  that  they  have  no  means  of  delivering  beyond 
their  lines  ;  but  it  was  held  in  Vincent  v.  The  Chicago  &  Alton  R.  Co., 
49  111.  33,  that  at  common  law,  and  independent  of  the  statute  relied 
on  in  the  argument,  that  in  cases  where  a  shipment  of  grain  was  made 
to  a  party  having  a  warehouse  on  the  line  of  the  carrying  road,  who 
had  provided  a  connecting  track  and  was  read}'  to  receive  it,  it  would 
be  the  dutj'  of  the  railroad  compan}'  to  make  a  personal  delivery  of  the 
grain  to  the  consignee  at  his  warehouse  ;  because,  say  the  court,  "  the 
common-law  rule  must  be  applied,  as  the  necessity  of  its  relaxation" 
did  not  exist. 

This  rule  is  just  and  convenient,  and  necessary  to  an  expeditious  and 
economical  delivery  of  freights.  It  has  regard  to  their  proper  classifi- 
cation, and  to  the  circumstances  of  the  particular  case.  Under  it 
articles  susceptible  of  eas}'  transfer  may  be  delivered  at  a  general  de- 
livery depot  provided  for  the  i)urpose.  But  live  stock,  coal,  ore,  grain 
in  bulk,  marble,  etc.,  do  not  belong  to  this  class.  For  these  some  other 
and  more  appropriate  mode  of  delivery  must  be  provided.  Hence  it  is 
that  persons  engaged  in  receiving  and  forwarding  live  stock,  manufac- 
turers consuming  large  quantities  of  heavv  material,  dealers  in  coal, 
and  gi'ain  merchants,  receiving,  storing,  and  forw^arding  grain  in  bulk, 
who  are  dependent  on  railroad  transportation,  usually'  select  locations 
for  the  prosecution  of  their  business  contiguous  to  railroads,  where  they 
can  have  the  benefit  of  side  connections  over  wliich  their  freight  can  be 
delivered  in  bulk  at  their  private  depots  ;  and  may  a  railroad  company, 
after  encouraging  investments  in  mills,  furnaces,  and  other  productive 
manufacturing  enterprises  on  its  line  of  road,  refuse  to  make  personal 
delivery  of  the  material  necessary  to  their  business,  at  their  depots, 
erected  for  tiie  purpose,  and  require  them  to  accept  deliverv  a  mile  dis- 
tant, at  the  depot  of  and  through  a  rival  and  competing  establishment? 
Or  may  such  railroad  company  establish  a  "Union  Coal  Yard  "  in  this 
cit}',  and  constitute  it  its  depot  for  the  delivery  of  coal,  and  thus  im- 
pose on  all  the  coal  dealers  in  the  city,  with  whom  it  has  side  connec- 


92  COE   V.  LOUISVILLE   &   NASHVILLE   KAILEOAD. 

tions,  the  labor,  expense,  and  dela}-  of  carting  their  coal  supplies  from 
such  general  delivery  to  their  respective  yards  ?  Or  may  such  railroad 
company,  in  like  manner,  discriminate  between  grain  elevators  in  the 
same  place,  —  constitute  one  elevator  its  depot  for  the  deliver3-  of  grain, 
and  force  competing  interests  to  receive  from  and  transfer  the  grain 
consigned  to  them  through  such  selected  and  favored  channel? 

If  railroad  corporations  possess  such  right,  they  can  destroj'  a  refrac- 
tory manufacturer,  exterminate,  or  ver^-  materially  cripple  competition, 
and  in  large  measure  monopolize  and  control  these  several  branches  of 
useful  commerce,  and  dictate  such  terms  as  avarice  may  suggest.  We 
think  they  possess  no  such  power  to  kill  and  make  alive.  Impartiality 
in  serving  their  patrons  is  an  imperative  obligation  of  all  railroad  com- 
panies ;  equality  of  accommodations  in  the  use  of  railroads  is  the  legal 
right  of  everybody.  The  principle  is  founded  in  justice  and  necessity-, 
and  has  been  uniformly  recognized  and  enforced  by  the  courts.  A  con- 
trary idea  would  concede  to  railroad  companies  a  dangerous  discretion, 
and  inevitably  lead  to  intolerable  abuses.  It  would,  to  a  limited  ex- 
tent, make  them  masters  instead  of  the  servants  of  the  public.  B3'  an 
unjust  exercise  of  such  a  power  tliey  could  destro}'  the  business  of  one 
man  and  build  up  that  of  another,  punish  an  enemy  and  reward  a 
friend,  depress  the  interests  of  one  communit}'  for  the  benefit  of  its 
rival,  and  so  manipulate  their  roads  as  to  compel  concessions  and  se- 
cure incidental  profits  to  which  they  have  no  legal  or  moral  right 
whatever. 

The  case  in  hand  is  but  a  sample  of  what  might  be  done  by  these 
corporations  if  the  power  claimed  in  this  case  is  possessed  b}-  them. 
Complainants'  stock  yard  was  purchased  and  fitted  up  at  a  heavy  out- 
la}-  of  money.  It  was,  at  the  time,  a  necessity  to  defendant's  business. 
B}-  the  express  agreement  or  tacit  understanding  of  the  parties  suitable 
connections  for  receiving  and  delivering  stock  were  made,  of  which  the 
defendant  availed  itself  for  twelve  years.  But.  after  thus  accepting  the 
benefits  of  complainants'  expenditures,  the  defendant  proposes  to  sever 
its  connections,  withhold  further  accommodations,  decline  to  receive 
from  or  deliver  stock  at  complainants'  yard,  concentrate  its  patronage 
on  the  Union  vStock  Yard  Compau}*,  require  all  consignors  to  way-bill 
their  stock  to  the  care  of  said  favored  company,  and,  by  this  invidious 
discrimination,  compel  complainants  to  carr}'  on  their  trade  through  a 
rival  yard,  or  else  abandon  their  established  and  lucrative  business. 
The  execution  of  defendant's  threat  would  destroy  complainants'  busi- 
ness, depreciate  their  property,  and  deprive  the  pul)lic  of  the  pi'otection 
against  exorbitant  charges  which  legitimate  competition,  conducted  on 
equal  terms,  always  insures.  Complainants'  yard  is  on  defendant's 
road  ;  it  furnislies  every  needed  facility  ;  was  purchased  and  improved 
in  the  belief  that  the}'  would  receive  the  same  measure  of  accommoda- 
tion extended  to  others  sustaining  the  same  relation  to  defendant;  de- 
fendant can  receive  and  discharge  stock  at  comi)lainauts' yard  as  easily 
and  cheaply  as  it  can  at  the  Union  Stock  Yard  Company's  yards.    Such 


ATCH.,   TOP.   &   S.   F.    R.   V.   DENVER    &   NEW   ORLEANS   R.  93 

deliver}^  is  both  practicable  and  convenieut,  and  it  is,  we  think,  its  legal 
dut\',  under  the  facts  of  this  case,  to  do  so. 

But  defendant,  protesting  that  the  proposed  discrimination  in  favor 
of  tlie  Union  Stock  Yard  Conipan}'  would,  if  executed,  constitute  no 
wrong  of  which  complainants  ought  justl}'  to  complain,  contends, — 
Jt/'st,  that  complainants,  even  supposing  the  law  to  be  otherwise,  have 
an  adequate  remedy  at  law,  and  therefore  cannot  have  an}-  relief  from 
a  court  of  chancery  ;  and,  second,  that  if  a  chancery  court  may  enter- 
tain jurisdiction,  no  relief  in  the  nature  of  a  mandatory  order  to  com- 
pel defendant  to  continue  accommodations  to  the  complainants  ought 
to  be  made  until  the  final  hearing.  If  such  is  the  law  it  must  be  so 
administered.  But  we  do  not  concur  in  this  interpretation  of  the  adju- 
dications. Those  cited  in  argument  are  not,  we  think,  applicable  to 
the  facts  of  this  case.  Complainants  could,  in  the  event  defendant 
carries  its  threat  into  execution  and  withholds  the  accommodations 
claimed  as  their  right,  sue  at  law  and  recover  damages  for  the  wrong 
to  be  thus  inflicted.  But  the}-  could  not,  through  any  process  used  by 
courts  of  law,  compel  defendant  to  specifically  perform  its  legal  duty  in 
the  premises.  And  this  imperfect  redress  could  onl}'  be  attained 
through  a  multiplicit}-  of  suits,  to  be  prosecuted  at  great  expense  of 
money  and  labor ;  and  then,  after  reaching  the  end  through  the  harass- 
ing delays  incident  to  such  litigation,  complainants'  business  would  be 
destro3'ed,  and  the  Union  Stock  Yard  Compan}',  born  of  favoritism  and 
fostered  by  an  illegal  and  unjust  discrimination,  would  be  secure  in  its 
monopoly.  Here  an  adequate  remed}'  can  be  administered  and  a  mul- 
tiplicity of  suits  avoided. 

One  other  point  remains  to  be  noticed.  Ought  a  mandatory  order  to 
issue  upon  this  preliminary  application  ?  Clearly  not,  unless  the  urgency 
of  the  case  demands  it,  and  the  rights  of  the  parties  are  free  from 
reasonable  doubt.  The  duty  which  the  complainants  seek  by  this  suit 
to  enforce  is  one  imposed  and  defined  b}'  law  —  a  dut}-  of  which  the 
court  has  judicial  knowledge.  The  injunction  compelling  its  perform- 
ance, pending  this  controvers}',  can  do  defendant  no  harm  ;  whereas  a 
suspension  of  accommodations  would  work  inevitable  and  irreparable 
mischief  to  complainants.  The  injunction  prayed  for  will,  therefore,  be 
issued. 


ATCHISON,  TOPEKA   AND    SANTA  FE  RAILROAD   v.  DEN- 
VER  AND   NEW   ORLEANS    RAILROAD. 

SuPEEME  Court  of  the  United  States.     1884. 

[no  U.  S.  667.1 

This  was  a  bill  in  equity  filed  by  the  Denver  &  New  Orleans  Rail- 
road Company,  a  Colorado  corporation,  owning  and  operating  a  rail- 
road in  that  State  ])etween   Denver  and  Pueblo,  a  distance  of  al)out 


94  ATCH.,    TOP.    &   S.   F,    K.    V.    DENVER   &    NEW    OELEANS   E. 

one  hundred  and  twenty-five  miles,  against  tlie  Atcliison,  Topeka  & 
Santa  Fe  Railroad  Com  pan}',  a  Kansas  corporation,  owning  and 
operating  a  railroad  in  that  State  from  the  Missouri  River,  at  Kan- 
sas City,  westerlj-  to  the  Colorado  State  line,  and  also  operating  from 
there,  under  a  lease,  a  road  in  Colorado  from  the  State  line  to  Pueblo, 
built  by  the  Pueblo  &  Arkansas  Valley  Railroad  Company,  a  Colorado 
corporation.  The  two  roads  so  operated  b\-  the  Atchison,  Topeka  & 
Santa  Fe  Company  formed  a  continuous  line  of  communication  from 
Kansas  City  to  Pueblo,  about  six  liundred  and  thirty-four  miles.  The 
general  purpose  of  the  suit  was  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Company  to  unite  with  the  Denver  &  New  Orleans  Company 
in  forming  a  through  line  of  railroad  transportation  to  and  from  Den- 
ver over  the  Denver  &  New  Orleans  road,  with  all  the  privileges  as  to 
exchange  of  business,  division  of  rates,  sale  of  tickets,  issue  of  bills 
of  lading,  checking  of  baggage  and  interchange  of  cars,  that  were  or 
might  be  customary  with  connecting  roads,  or  that  were  or  might  be 
granted  to  the  Denver  &  Rio  Grande  Railroad  Company,  another  Col- 
orado corporation,  also  owning  and  operating  a  road  parallel  to  that  of 
the  DeuA'Cr  &  New  Orleans  Companj-  between  Denver  and  Pueblo,  or  to 
any  other  railroad  compan}'  competing  with  the  Denver  &  New  Orleans 
for  Denver  business. 

It  appeared  that  when  the  Atchison,  Topeka  &  Santa  Fe  Company 
reached  Pueblo  with  its  line  it  had  no  connection  of  its  own  with  Den- 
ver. The  Denver  &  Rio  Grande  road  was  built  and  running  between 
Denver  and  Pueblo,  but  the  gauge  of  its  track  was  different  from  that 
of  the  Atchison,  Topeka  &  Santa  Fe.  Other  companies  occupying 
different  routes  had  at  the  time  substantial!}-  the  control  of  the  trans- 
portation of  passengers  and  freight  between  the  Missouri  River  and 
Denver.  The  Atchison,  Topeka  &  Santa  Fe  Compan}',  being  desirous 
of  competing  for  this  business,  entered  into  an  arrangement,  as  early 
as  1879,  with  the  Denver  &  Rio  Grande  Company  for  the  formation  of 
a  through  line  of  transportation  for  that  purpose.  By  this  arrange- 
ment a  third  rail  was  to  be  put  down  on  the  track  of  the  Denver  & 
Rio  Grande  road,  so  as  to  admit  of  the  passage  of  cars  continuously 
over  both  roads,  and  terms  were  agreed  on  for  doing  the  business  and 
for  the  division  of  rates.  The  object  of  the  parties  was  to  estal)lish  a 
new  line,  which  could  be  worked  with  rapidity  and  economy,  in  compe- 
tition with  the  old  ones.^ 

In  1882  the  Denver  &  New  Orleans  Company  completed  its  road 
between  Denver  and  Pueblo,  and  connected  its  track  with  that  of  the 
Atchison.  Topeka  &  Santa  Fe,  in  Pueblo,  twelve  or  fifteen  hundred  feet 
easterly  from  the  junction  of  the  Denver  &  Rio  Grande,  and  about 
three-quarters  of  a  mile  from  the  union  depot  at  which  the  Atchison, 
Topeka  &  Santa  Fe  and  the  Denver  &  Rio  Grande  interchanged  their 
business,  and  where  each  stopped  its  trains  regularly  to  take  on  and 
let  off  passengers  and  receive  and  deliver  freight.  The  Denver  & 
1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


ATCH.,   TOP.   &   S.    F.    R.    V.   DENVER    &   NEW    ORLEANS   E.  95 

New  Orleans  Company  erected,  at  its  junction  witli  the  Atchison,  To- 
peka  &  Santa  Fe,  platfoi'uis  and  otlier  accommodations  for  the  inter- 
change of  business,  and  before  this  suit  was  begun  tlic  general  super- 
intendent of  the  Denver  &  New  Orleans  Company  made  a  request  in 
writing  of  the  general  manager  of  the  Atchison,  Topeka  &  Santa  Fe, 
as  follows : 

"  That  through  bills  of  lading  be  given  via  your  line  and  ours,  and 
that  you  allow  all  freight  consigned  via  D.  &  N.  O.  R.  K.  to  be  deliv- 
ered this  company  at  point  of  junction,  and  on  such  terms  as  exist 
between  your  road  and  any  other  line  or  lines  ;  that  you  allow  your 
cars,  or  cars  of  any  foreign  line,  destined  for  points  reached  by  the 
D.  &  N.  O.  R.  R.,  to  be  delivered  to  this  company  and  hauled  to  desti- 
nation in  same  manner  as  interchanged  with  any  other  line.  That  you 
allow  tickets  to  be  placed  on  sale  between  points  on  line  of  D.  &  N.  O. 
R.  R.  and  those  on  line  of  A.  T.  &  S.  F.  R.  R.,  or  readied  by  either 
line  ;  that  a  system  of  through  checking  of  baggage  be  adopted  ;  that 
a  transfer  of  U.  S.  mail  be  made  at  point  of  junction.  In  matter  of 
settlements  between  the  two  companies  for  earnings  and  charges  due, 
we  will  settle  daily  on  delivery  of  freight  to  this  line  ;  for  mileage  due 
for  car  service,  and  for  amounts  due  for  tickets  interchanged,  we  agree 
to  settle  monthly,  or  in  any  other  manner  adopted  by  your  line,  or  as 
is  customary  between  railroads  in  such  settlements." 

This  request  was  refused,  and  the  Atchison,  Topeka  &  Santa  Fe 
Company  continued  its  through  business  with  the  Denver  &  Rio 
Grande  as  before,  but  declined  to  receive  or  deliver  freight  or  pas- 
sengers at  the  junction  of  the  Denver  &  New  Orleans  road,  or  to  give 
or  take  through  bills  of  lading,  or  to  sell  or  receive  through  tickets,  or 
to  check  baggage  over  that  line.  All  passengers  or  freight  coming 
from  or  destined  for  that  line  were  taken  or  delivered  at  the  regular 
depot  of  the  Atchison,  Topeka  &  Santa  Fe  Company  in  Pueblo,  and 
the  prices  charged  were  according  to  the  regular  rates  to  and  from  that 
point,  which  were  more  than  the  Atchison.  Topeka  &  Santa  Fe  received 
on  a  division  of  through  rates  to  and  from  Denver  under  its  arrange- 
ment with  the  Denver  &  Rio  Grande  Company.   .   .   . 

Upon  this  state  of  facts  the  Circuit  Court  entered  a  decree  requiring 
the  Atchison,  Topeka  &  Santa  Fe  Company  to  stop  all  its  passenger 
trains  at  the  platform  built  by  the  Denver  &  New  Orleans  Company 
where  the  two  roads  joined,  and  to  remain  there  long  enough  to  take 
on  and  let  off  passengers  with  safety,  and  to  receive  and  deliver 
express  matter  and  the  mails.  It  also  required  the  Atchison,  Topeka 
&  Sante  Fe  Company  to  keep  an  agent  there,  to  sell  tickets,  check 
baggage,  and  bill  freight.  All  freight  trains  were  to  be  stopped  at  the 
same  place  whenever  there  was  frcigiit  to  be  taken  on  or  delivered,  if 
proper  notice  was  given.  While  the  Atchison,  Topeka  &  Santa  Fe 
Compan}'  was  not  required  to  issue  or  recognize  through  bills  of  lading 
embracing  the  Denver  &  New  Orleans  road  in  the  route,  or  to  sell  or 
recognize  through  tickets  of  the  same  character,  or  to  check  baggage 


9G  ATCH.,   TOP.    &   S.   F.    K.    V.   DENVER   &   NEW   ORLEANS   R. 

in  connection  with  that  road,  it  was  required  to  carry  freight  and  pas- 
sengers going  to  or  coming  from  that  road  at  the  same  price  it  would 
receive  if  the  passenger  or  freight  were  carried  to  or  from  the  same 
point  upon  a  through  ticket  or  thi'ough  bill  of  lading  issued  under  an}' 
arrangement  with  the  Denver  &  Rio  Grande  Company  or  any  other 
competitor  of  the  Denver  &  New  Orleans  Compan}-  for  business.  In 
short,  the  decree,  as  entered,  establishes  in  detail  rules  and  regulations 
for  the  working  of  the  Atchison,  Topeka  &  Santa  Fe  and  Denver  & 
New  Orleans  roads,  in  connection  with  each  other  as  a  connecting 
through  line,  and,  in  effect,  requires  the  Atchison,  Topeka  &  Santa  Fe 
Company  to  place  the  Denver  &  New  Orleans  Company  on  an  equal 
footing  as  to  the  interchange  of  business  with  the  most  favored  of  the 
competitors  of  that  company,  both  as  to  prices  and  facilities,  except  in 
respect  to  the  issue  of  througli  bills  of  lading,  through  checks  for  bag- 
gage, tb.rough  tickets,  and  perhaps  the  compulsor}'  interchange  of  cars. 

From  this  decree  both  companies  appealed  ;  the  Atchison,  Topeka 
&  Santa  Fe  Company  because  the  bill  was  not  dismissed  ;  and  the 
Denver  &  New  Orleans  Compan}'  because  the  decree  did  not  fix  the 
rates  to  be  charged  b}-  the  Atchison,  Topeka  &  Santa  Fe  Compau}-  for 
freiglit  and  passengers  transported  by  it  in  connection  with  the  Denver 
&  New  Orleans,  or  make  a  specific  division  and  apportionment  of 
through  rates  between  the  two  companies,  and  because  it  did  not 
require  the  issue  of  through  tickets  and  through  bills  of  lading,  and 
the  through  checking  of  baggage. 

Mr.  H.  C.  Thatcher,  Mr.  Charles  E.  Gast,  3L:  George  R.  Peel; 
and  Mr.  William  31.  Erarts  for  the  Atchison,  Topeka  &  Santa  Fe 
Railroad  Company. 

Mr.  E.   T.  Wells  for  the  Denver  &  New  Orleans  Railroad  Company. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. ^ 
After  reciting  the  facts  in  the  foregoing  language  he  continued : 

The  case  has  been  presented  b}'  counsel  in  two  aspects  : 

1.  In  view  of  the  requirements  of  the  Constitution  of  Colorado 
alone  ;    and 

2.  In  view  of  tlie  constitutional  and  common-law  obligations  of  rail- 
road companies  in  Colorado  as  common  carriers. 

We  will  first  consider  the  requirements  of  the  Constitution;  and 
here  it  may  be  premised  that  sec.  6  of  art.  15  imposes  no  greater 
obligations  upon  the  company  than  the  common  law  would  have  im- 
posed without  it.  Every  common  carrier  must  earr}'  for  all  to  the 
extent  of  his  capacity,  without  undue  or  unreasonable  discrimination 
either  in  charges  or  facilities.  The  Constitution  has  taken  from  the 
legislature  the  power  of  abolishing  this  rule  as  applied  to  railroad 
companies. 

So  in  sec.  4  there  is  nothing  specially  important  to  the  present 
inquiry  except  the  last  sentence :  "  Eveiy  railroad  compan}-  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any 
1  Part  of  the  opinion  is  omitted.  —  Ed. 


ATCIL,   TOP.    &   S.    F.    R.   V.    DENVER   &   NEW   ORLEANS   E.  97 

other  railroad."  Railroad  companies  are  created  to  serve  the  public 
as  carriers  for  hire,  and  their  obligations  to  the  public  are  such  as  the 
law  attaches  to  that  service.  The  only  exclusively  constitutional  ques- 
tion in  the  case  is,  therefore,  whether  the  right  of  one  railroad  com- 
pany to  connect  its  road  with  that  of  another  company,  which  has  been 
made  part  of  the  fundamental  law  of  the  State,  imi)lies  more  than  a 
mechanical  union  of  the  tracks  of  the  roads  so  as  to  admit  of  the  con- 
venient passage  of  cars  from  one  to  the  other.  The  claim  on  the  part 
of  the  Denver  &  New  Orleans  Company  is  that  the  right  to  connect 
the  roads  includes  the  right  of  business  intercourse  between  the  two 
companies,  such  as  is  customary  on  roads  forming  a  continuous  line, 
and  that  if  the  companies  fail  or  refuse  to  agree  upon  the  terms  of 
their  intercourse  a  court  of  equity  may,  in  the  absence  of  statutory 
regulations,  determine  what  the  terms  shall  be.  Such  appears  to  have 
been  the  opinion  of  the  Circuit  Court,  and  accordingly  in  its  decree  a 
compulsory  business  connection  was  established  between  the  two  com- 
panies, and  rules  were  laid  down  for  the  government  of  their  conduct 
towards  each  other  in  this  new  relation.  In  other  words,  the  court  has 
made  an  arrangement  for  the  business  Intercourse  of  these  companies 
such  as,  in  its  opinion,  they  ought  in  law  to  have  made  for  themselves. 

There  is  here  no  question  as  to  how  or  where  the  physical  connec- 
tion of  the  roads  shall  be  made,  for  that  has  already  been  done  at  the 
place,  and  in  the  way,  decided  upon  by  the  Denver  &  New  Orleans 
Company  for  itself,  and  the  Atchison,  Topeka  &  Santa  Fe  Company 
does  not  ask  to  have  it  changed.  The  point  in  dispute  upon  this 
branch  of  the  case,  therefore,  is  whether,  under  the  Constitution  of 
Colorado,  the  Denver  &  New  Orleans  Company  has  a  constitutional 
riglit,  which  a  court  of  chancer}'  can  enforce  bj'  a  decree  for  specific 
performance,  to  form  the  same  business  connection,  and  make  the  same 
traffic  arrangement,  with  the  Atchison,  Topeka  &  Santa  Fe  Company 
as  that  company  grants  to,  or  makes  with,  an}-  competing  company 
operating  a  connected  road. 

The  right  secured  by  the  Constitution  is  that  of  a  connection  of  one 
road  with  another,  and  the  language  used"  to  describe  the  grant  is 
strikingly  like  that  of  sec.  23  of  the  charter  of  the  Baltimore  &  Ohio 
Railroad  Company,  given  by  Maryland  on  the  28th  of  February,  1827, 
Laws  of  Maryland,  1826,  c.  123,  which  is  in  these  words  : 

"  That  full  rigiit  and  privilege  is  hereby  reserved  to  the  citizens  of 
this  State,  or  any  compan}'  hereafter  to  be  incorporated  under  the 
authorit}'  of  tliis  State,  to  connect  with  the  road  hereby  provided  for, 
any  other  raili'oad  leading  from  the  main  route,  to  any  other  part  or 
parts  of  the  State." 

At  the  time  this  charter  was  granted  the  idea  prevailed  that  a  rail- 
road could  be  used  like  a  public  highway  b}*  all  who  chose  to  put  car- 
riages thereon,  subject  only  to  the  payment  of  tolls,  and  to  reasonable 
regulations  as  to  the  manner  of  doing  business.  Lake  Sup.  tk  Miss.  Ji. 
B.  Co.  V.  Uiiifed  States,  93  U.  S.  442  ;  but  that  the  word  "  connect,"  as 

7 


98  ATCH.,   TOP.    &   S.   F.    R.   V.    DENVER   &   NEW    ORLEANS   R. 

here  used,  was  not  supposed  to  mean  anj-thing  more  than  a  mechanical 
union  of  the  tracks  is  apparent  from  the  fact  that  when  afterwards,  ou 
the  9th  of  March,  1833,  authority  was  given  the  owners  of  certain  fac- 
tories to  connect  roads  from  their  factories  with  the  Washington  branch 
of  the  Baltimore  &  Ohio  Company,  and  to  erect  depots  at  the  junc- 
tions, it  was  in  express  terms  made  "  the  duty  of  the  company  to  take 
from  and  deliver  at  said  depot  any  produce,  merchandise,  or  manufac- 
tures, or  other  articles  whatsoever,  which  they  (the  factory  owners) 
may  require  to  be  transported  on  said  road."  Maryland  Laws  of  1832, 
c.  175,  sec.  16.  The  charter  of  the  Baltimore  &  Ohio  Company  was 
one  of  the  earliest  ever  granted  in  the  United  States,  and  while  from 
the  beginning  it  was  common  in  most  of  the  States  to  provide  in  some 
form  by  charters  for  a  connection  of  one  railroad  with  another,  we 
have  not  had  our  attention  called  to  a  single  case  where,  if  more  than 
a  connection  of  tracks  was  required,  the  additional  requirement  was 
not  distinctl}'  stated  and  defined  by  the  legislature. 

Legislation  regarding  the  duties  of  connected  roads  because  of  their 
connection  is  to  be  found  in  many  of  the  States,  and  it  began  at  a  very 
early  day  in  the  history-  of  railroad  construction.  As  long  ago  as  1842 
a  general  statute  upon  the  subject  was  passed  in  Maine,  Stats,  of 
Maine,  1842,  c.  9  ;  and  in  1854,  c.  93,  a  tribunal  was  established  for 
determining  upon  the  "  terras  of  connection  "  and  "the  rates  at  which 
passengers  and  merchandise  coming  from  the  one  shall  be  transported 
over  the  other,"  in  case  the  companies  themselves  failed  to  agree. 
Other  States  have  made  different  provisions,  and  as  railroads  have 
increased  in  number,  and  their  relations  have  become  more  and  more 
complicated,  statutory  regulations  have  been  more  frequently  adopted, 
and  with  greater  particularity  in  matters  of  detail.  Much  litigation 
has  grown  out  of  controversies  between  connected  roads  as  to  their 
respective  rights,  but  we  have  found  no  case  in  which,  without  legisla- 
tive regulation,  a  simple  connection  of  tracks  has  been  held  to  estab- 
lish an}'  contract  or  business  relation  between  the  companies.  .   .   . 

To  our  minds  it  is  clear  that  the  constitutional  right  in  Colorado  to 
connect  railroad  with  railroad  does  not  itself  imply  the  right  of  con- 
necting business  with  I)usiness.  Tlie  railroad  companies  are  not  to  be 
connected,  but  their  roads.  A  connection  of  roads  may  make  a  con- 
nection in  business  convenient  and  desirable,  but  the  one  does  not 
necessarily  carry  with  it  the  other.  The  language  of  the  Constitution 
is  that  railroads  may  "  intersect,  connect  with,  or  cross"  each  other. 
This  clearly  applies  to  the  road  as  a  physical  structure,  not  to  the  cor- 
poration or  its  business. 

This  brings  us  to  the  consideration  of  the  second  branch  of  the 
case,  to  wit,  the  relative  riglits  of  the  two  companies  at  common  law 
and  under  the  Constitution,  as  owners  of  connected  roads,  it  being 
conceded  that  there  are  no  statutory  regulations  applicable  to  the 
subject. 

The  Constitution  expressly  provides : 


ATCH.,    TOP    &   S.    F.    It.    V.    DENVER   &    NEW   ORLEANS    R.         99 

1.  That  all  shall  have  equal  rights  in  the  transportation  of  persons 
aiul  property  ; 

2.  That  there  shall  not  be  any  undue  or  unreasonable  discrimination 
in  charges  or  facilities  ;  and 

3.  That  preferences  shall  not  be  given  in  furnishing  cars  or  motive 
power. 

It  does  not  expressly  provide  : 

1.  That  the  trains  of  one  connected  road  shall  stop  for  the  exchange 
of  business  at  the  junction  with  the  other;  nor 

2.  That  companies  owning  connected  roads  shall  unite  in  forming  a 
through  line  for  continuous  business,  or  haul  each  other's  cars  ;  nor 

3.  That  local  rates  on  a  through  line  shall  be  the  same  to  one  con- 
nected road  not  in  the  line  as  the  through  rates  are  to  another  which 
is  ;  nor 

4.  That  if  one  company  refuses  to  agree  with  another  owning  a  con- 
nected road  to  form  a  through  line  or  to  do  a  connecting  business 
a  court  of  chancery  ma}'  order  that  such  a  business  be  done  and  fix 
the  terms. 

The  question,  then,  is  whether  these  rights  or  any  of  them  are  im- 
plied either  at  common  law  or  from  the  Constitution. 

At  common  law,  a  carrier  is  not  bound  to  carr}'  except  on  his  own 
line,  and  we  think  it  quite  clear  that  if  he  contracts  to  go  beyond  he 
ma}',  in  the  absence  of  statutory  regulations  to  the  contrary,  determine 
for  himself  what  agencies  he  will  employ.  His  contract  is  equivalent 
to  an  extension  of  his  line  for  the  purposes  of  the  contract,  and  if  he 
holds  himself  out  as  a  carrier  beyond  the  line,  so  that  he  may  be  required 
to  carry  in  that  wa}'  for  all  alike,  he  may  nevertheless  confine  himself 
in  carrying  to  the  particular  route  he  chooses  to  use.  He  puts  himself 
in  no  worse  position,  b}'  extending  his  route  with  the  help  of  others, 
than  he  would  occupy  if  the  means  of  transportation  employed  were  all 
his  own.  He  certainl}'  may  select  his  own  agencies  and  his  own  asso- 
ciates for  doing  his  own  work. 

The  Atchison,  Topeka  &  Santa  Fe  Compan}',  as  the  lessee  of  the 
Pueblo  &  Arkansas  Valle}'  Railroad,  has  the  statutory  right  to  estab- 
lish its  own  stations  and  to  regulate  the  time  and  manner  in  which  it 
will  carry  persons  and  property  and  the  price  to  be  paid  therefor.  As 
to  all  these  matters,  it  is  undoubtedly  subject  to  the  power  of  legisla- 
tive regulation,  but  in  the  absence  of  regulation  it  owes  onl}'  such 
duties  to  the  public,  or  to  individuals,  associations,  or  corporations,  as 
the  common  law,  or  some  custom  having  the  force  of  law,  has  estab- 
lished for  the  government  of  those  in  its  condition.  As  has  already 
been  shown,  the  Constitution  of  Colorado  gave  to  ever}'  railroad  com- 
pany in  the  State  the  right  to  a  mechanical  union  of  its  road  with  that 
of  any  other  company  in  the  State,  but  no  more.  The  legislature  has 
not  seen  fit  to  extend  this  right,  as  it  undoubtedly  may,  and  conse- 
quently the  Denver  &  New  Orleans  Company  comes  to  the  Atchison, 
Topeko  &  Santa  Fe  Company  just  as   any  other  customer  does,  and 


100         ATCH.,   TOP.    &   S.   F.    K.    V.   DENVEE   &   NEW   ORLEANS   K. 

with  no  more  rights.  It  has  established  its  junction  and  provided  itself 
with  the  means  of  transacting  its  business  at  that  place,  but  as  yet  it 
has  no  legislative  authority  to  compel  the  other  company-  to  adopt  that 
station  or  to  establish  an  agency  to  do  business  there.  So  far  as  statu- 
tory regulations  are  concerned,  if  it  wishes  to  use  the  Atchison,  To- 
peka  &  Santa  Fe  road  for  business,  it  must  go  to  the  place  where  that 
company  takes  on  and  lets  off  passengers  or  property  for  others.  It 
has  as  a  railroad  company  no  statutory  or  constitutional  privileges  in 
this  particular  over  other  persons,  associations,  or  corporations.  It 
saw  fit  to  establish  its  junction  at  a  place  away  from  the  station  which 
the  Atcliison,  Topeka  &  Santa  Fe  Company'  had,  in  the  exercise  of  its 
legal  discretion,  located  for  its  own  convenience  and  that  of  the  public. 
It  does  not  now  ask  to  enter  that  station  with  its  tracks  or  to  inter- 
change business  at  that  place,  but  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Companj-  to  stop  at  its  station  and  transact  a  connecting 
business  there.  No  statute  requires  that  connected  roads  shall  adopt 
joint  stations,  or  that  one  railroad  company  shall  stop  at  or  make  use 
of  the  station  of  another.  Each  company  in  the  State  has  the  legal 
right  to  locate  its  own  stations,  and  so  far  as  statutory  regulations  are 
concerned,  is  not  required  to  use  any  other. 

A  railroad  compan}'  is  prohibited,  both  by  the  common  law  and  by 
the  Constitution  of  Colorado,  from  discriminating  unreasonaljly  in  favor 
of  or  against  another  company'  seeking  to  do  business  on  its  road  ;  but 
that  does  not  necessarih'  imply  that  it  must  stop  at  the  junction  of  one 
and  interchange  business  tliere,  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  connecting  business 
with  another  comi)any  at  another  place.  A  station  may  be  established 
for  the  special  acconmiodation  of  a  particular  customer;  but  we  have 
never  heard  it  claimed  that  every  other  customer  could,  by  a  suit  in 
equit}',  in  the  absence  of  a  statutory  or  contract  right,  compel  the  com- 
pan}'  to  establish  a  like  station  for  liis  special  accommodation  at  some 
other  place.  Such  matters  are,  and  always  have  been,  proper  subjects 
for  legislative  consideration,  unless  prevented  b}'  some  charter  con- 
tract ;  but,  as  a  general  rule,  remedies  for  injustice  of  that  kind  can 
onl}'  be  obtained  from  the  legislature.  A  court  of  chancer^'  is  not,  any 
more  than  is  a  court  of  law,  clothed  with  legislative  power.  It  may 
enforce,  in  its  own  appropriate  way,  the  specific  performance  of  an 
existing  legal  obligation  arising  out  of  contract,  law,  or  usage,  but  it 
cannot  create  the  obligation. 

In  the  present  case,  the  Atchison,  Topeka  &  Santa  Fe  and  the  Den- 
ver &  Rio  Grande  Companies  formed  their  business  connection  and 
established  their  junction  or  joint  station  long  before  the  Denver  & 
New  Orleans  road  was  built.  The  Denver  &  New  Orleans  Company 
saw  fit  to  make  its  junction  with  the  Atchison,  Topeka  &  Santa  Fe 
Company  at  a  different  place.  Under  these  circumstances,  to  hold 
that,  if  the  Atchison,  Topeka  &  Santa  Fe  continued  to  stop  at  its  old 
station,  after  the  Denver  &  New  Orleans  was  built,  a  refusal  to  stop 


ATCH.,   TOP.    &   S.    F.    K.    V.    DENVER   &   NEW   ORLEANS   R.       101 

at  the  junction  of  the  Denver  &  New  Orleans,  was  an  unreasonable 
discrimination  as  to  facilities  in  favor  of  the  Denver  &  Kio  Grande 
Company,  and  against  the  Denver  &  New  Orleans,  would  be  in  elfect 
to  declare  that  every  railroad  company  which  forces  a  connection  of 
its  road  with  that  of  another  company  has  a  right,  under  the  Constitu- 
tion or  at  the  common  law,  to  require  the  company  with  which  it  c(;n- 
nects  to  do  a  connecting  business  at  the  junction,  if  it  does  a  similar 
business  with  any  other  company  under  any  other  circumstances. 
Such,  we  think,  is  not  the  law.  It  may  be  made  so  by  the  legisla- 
tive department  of  the  government,  but  it  does  not  follow,  as  a  neces- 
sary consequence,  from  the  constitutional  right  of  a  mechanical  union 
of  tracks,  or  the  constitutional  prohibition  against  undue  or  unreason- 
able discrimination  in  facilities. 

This  necessarily  disposes  of  the  question  of  a  continuous  business, 
or  a  through  line  for  passengers  or  freight,  including  through  tickets, 
through  bills  of  lading,  through  checking  of  baggage,  and  the  like. 
Such  a  business  does  not  necessarily'  follow  from  a  connection  of 
tracks.  The  connection  may  enable  the  companies  to  do  such  a  busi- 
ness conveniently  when  it  is  established,  but  it  does  not  of  itself  estab- 
lish the  business.  The  legislature  cannot  take  away  the  right  to  a 
physical  union  of  two  roads,  but  whether  a  connecting  business  shall 
be  done  over  them  after  the  union  is  made  depends  on  legislative  regu- 
lation, or  contract  obligation.  An  interchange  of  cars,  or  the  hauling 
by  one  company  of  the  cars  of  the  other,  implies  a  stop  at  the  junction 
to  make  the  exchange  or  to  take  the  cars.  If  there  need  be  no  stop, 
there  need  be  no  exchange  or  taking  on  of  cars. 

The  onl}'  remaining  questions  are  as  to  the  obligation  of  the  Atchi- 
son, Topeka  &  Santa  Fe  Company  to  carry  for  the  Denver  &  New 
Orleans  when  passengers  go  to  or  freight  is  delivered  at  the  regular 
stations,  and  the  prices  to  be  charged.  As  to  the  obligation  to  carry, 
there  is  no  dispute,  and  we  do  not  understand  it  to  be  claimed  that  car- 
riage has  ever  been  refused  when  applied  for  at  the  proper  place.  The 
controvers}',  and  the  only  controversy-,  is  about  tlie  place  and  the  price. 

That  the  price  must  be  reasonable  is  conceded,  and  it  is  no  doubt 
true  that  in  determining  what  is  reasonable  the  prices  charged  for  busi- 
ness coming  from  or  going  to  other  roads  connecting  at  Pueblo  may  be 
taken  into  consideration.  But  the  relation  of  the  Denver  &  New 
Orleans  Company  to  the  Atchison,  Topeka  &  Santa  Fe  is  that  of  a 
Pueblo  customer,  and  it  dotis  not  necessarily  follow  that  the  price 
which  the  Atchison,  Topeka  &  Santa  Fe  gets  for  transportation  to  and 
from  Pueblo,  on  a  division  of  through  rates  among  the  component  com- 
panies of  a  through  line  to  Denver,  must  settle  the  Pueblo  local  rates. 
It  may  be  that  the  local  rates  to  and  from  Pueblo  are  too  high,  and 
that  the}'  ought  to  be  reduced,  but  that  is  an  entirely  different  question 
from  a  division  of  through  rates.  There  is  no  complaint  of  a  discrim- 
ination against  the  Denver  &  New  Orleans  Company  in  respect  to  the 
regular  Pueblo  rates ;  neither  is  there  anything  except  the   through 


102         ATCH.,   TOP.    &   S.    F.    R.    V.   DENVER   &   NEW   ORLEANS   R. 

rates  to  show  that  the  local  rates  are  too  high.  The  bill  does  not  seek 
to  reduce  the  local  rates,  but  only  to  get  this  company'  put  into  the 
same  position  as  the  Denver  &  Rio  Grande  on  a  division  of  throuo-h 
rates.  This  cannot  be  done  until  it  is  shown  that  the  relative  situa- 
tions of  the  two  companies  with  the  Atchison,  Topeka  &  Santa  Fe, 
both  as  to  the  kind  of  service  and  as  to  the  conditions  under  which  it 
is  to  be  performed,  are  substantially  tlie  same,  so  that  what  is  reason- 
able for  one  must  necessarily  be  reasonable  for  the  other.  When  a 
business  connection  shall  be  established  between  the  Denver  &  New 
Orleans  Company  and  the  Atchison,  Topeka  &  Santa  Fe  at  their  junc- 
tion, and  a  continuous  line  formed,  different  questions  may  arise  ;  but 
so  long  as  the  situation  of  the  parties  continues  as  it  is  now,  we  cannot 
say  that,  as  a  matter  of  law,  the  prices  charged  by  the  Atchison,  To- 
peka &  Santa  Fe,  for  the  transportation  of  persons  and  property 
coming  from  or  going  to  the  Denver  &  New  Orleans,  must  necessarily 
be  the  same  as  are  fixed  for  the  continuous  line  over  the  Denver  & 
Rio  Grande.   .   .   . 

All  the  American  cases  to  which  our  attention  has  been  called  b}'^ 
counsel  relate  either  to  what  amounts  to  undue  discrimination  between 
the  customers  of  a  railroad  company,  or  to  the  power  of  a  court  of 
chancer}'  to  interfere,  if  there  is  such  a  discrimination.  None  of  them 
hold  that,  in  the  absence  of  statutorj'  direction,  or  a  specific  contract, 
a  company  having  the  power  to  locate  its  own  stopping-places  can  be 
required  by  a  court  of  equity  to  stop  at  another  raihoad  junction  and 
interchange  business,  or  that  it  must  under  all  circumstances  give  one 
connecting  road  the  same  facilities  and  the  same  rates  that  it  does  to 
another  with  which  it  has  entered  into  special  contract  relations  for  a 
continuous  through  line  and  arranged  faciUties  accordingl}'.  The  cases 
are  all  instructive  in  their  analogies,  but  their  facts  are  different  from 
those  we  have  now  to  consider. 

We  have  not  referred  specially  to  the  tripartite  agreement  or  its  pro- 
visions, because,  in  our  opinion,  it  has  nothing  to  do  with  this  case  as 
it  is  now  presented.  The  question  here  is  whether  the  Denver  &  New 
Orleans  Company  would  have  the  right  to  the  relief  it  asks  if  there 
were  no  such  contract,  not  whether  the  contract,  if  it  exists,  will  be  a 
bar  to  such  a  right.  The  real  question  in  the  case,  as  it  now  comes 
before  us,  is  whether  the  relief  required  is  legislative  in  its  character 
or  judicial.  We  think  it  is  legislative,  and  that  upon  the  existing  facts 
a  court  of  chanceiT  can  aflford  no  remedy. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  cause  remanded 
with  direction  to  Dismiss  the  bill  without  prejudice. 


COVINGTON   STOCK-YARDS   COMPANY   V.    KEITH.  103 


COVINGTON   STOCK- YARDS   COMPANY   v.   KEITH. 

Supreme  Court  of  the  United  States,  1891. 

[139  U.  S.  128.] 

Mr.  Justice  Harlan  delivered  the  opinion  of  tlie  court. 

On  tlie  28tU  of  Januar}-,  1886,  George  T.  Bliss  and  Isaac  E.  Gates 
instituted  in  the  court  below  a  suit  in  equity  against  the  Kentucky 
Central  Railroad  Company,  a  corporation  of  Kentucky,  for  the  fore- 
closure of  a  mortgage  or  deed  of  trust  given  to  secure  the  payment  of 
bonds  of  that  compan}'  for  a  large  amount ;  in  which  suit  a  receiver 
was  appointed  who  took  possession  of  the  railroad,  with  authority  to 
operate  it  until  the  further  order  of  the  court. 

The  present  proceeding  was  begun  on  the  18th  of  June,  188G,  by  a 
petition  filed  in  the  foreclosure  suit  b}'  Charles  W.  Keith,  who  was 
engaged  in  buying  and  selling  on  commission,  as  well  as  on  his  own 
account,  live  stock  brought  to  and  sliipped  from  the  city  of  Covington, 
Kentucky,  over  the  Kentucky  Central  Railroad.  The  petition  pro- 
ceeded upon  the  ground  that  unjust  and  illegal  discrimination  had  been 
and  was  being  made  against  Keith  by  the  receiver  acting  under  and 
pursuant  to  a  written  agreement  made  November  19,  1881,  between  the 
railroad  company  and  the  Covington  Stock- Y^ards  Compau}-,  a  corpora- 
tion created  under  the  general  laws  of  Kentucky  ;  the  3'ards  of  the  latter 
compan}'  located  in  Covington,  and  connected  with  the  railroad  tracks 
in  that  cit}',  being  the  onl^*  depot  of  the  railwa}'  compan}'  that  was  pro- 
vided with  the  necessary  platforms  and  chutes  for  receiving  or  discharg- 
ing live  stock  on  and  from  its  trains  at  that  cit3\  The  petition  alleged 
that  Keith  was  the  proprietor  of  certain  live-stock  lots  and  yards  in 
that  city  immediately  west  of  those  belonging  to  the  Covington  Stock- 
Yards  Company,  and  separated  from  them  b\'  onl}'  one  street  sixty 
feet  in  width  ;  that  he  was  provided  with  all  the  necessary  means  of  re- 
ceiving, feeding,  and  caring  for  such  stock  as  he  purchased,  or  as  might 
be  consigned  to  him  b}'  others  for  sale  ;  and  that  his  lots  and  yards 
were  used  for  that  purpose  subsequently  to  March  1,  1886,  and  until, 
bj'  the  direction  of  the  receiver,  the  platforms  connecting  them  with 
the  railroad  were  torn  up  and  rendered  unfit  for  use.  The  prayer  of 
the  petitioner  was  for  a  rule  against  the  receiver  to  show  cause  wliy  he 
should  not  deliver  to  him  at  some  convenient  and  suitable  place  outside 
of  the  lots  or  yards  of  the  said  Covington  Stock-Yards  Company  free 
from  other  than  the  customarj'  freight  charges  for  transporttition,  all 
stock  owned  by  or  consigned  to  him  and  brought  over  said  road  to 
Covington. 

The  receiver  filed  a  response  to  the  rule,  and  an  order  was  entered 
giving  leave  to  the  Covington  Stock-Y''ards  Company  to  file  an  inter- 
vening petition  against  the  railroad  company'  and  Keith,  and  requiring 
the  latter  parties  to  litigate   between  themselves  the  question  of  the 


104  COVINGTON   STOCK-YARDS    COMPANY   V.    KEITH. 

validity  of  the  above  agreement  of  1881.  Tlie  Stock-Yards  Company 
filed  sucli  a  petition,  claiming  all  the  rights  granted  hy  the  agreement 
referred  to,  and  alleging  that  it  had  expended  sixty  thousand  dollars 
in  constructing  depots,  platforms,  and  chutes,  as  required  by  that 
agreement. 

Referring  to  that  agreement  it  appears  that  the  Stock- Yards  Com- 
pany stipulated  that  its  j'ards  on  the  line  of  the  railroad  in  Covington 
should  be  maintained  in  good  order,  properly  equipped  with  suitable 
fencing,  feeding-pens,  and  otiier  customary  conveniences  for  handling 
and  caring  for  live  stock,  and  to  that  end  it  would  keep  at  hand  a  suf- 
ficient number  of  skilled  workmen  to  perform  the  operations  required 
of  it,  and  generall}'  to  do  such  labor  as  is  usuall}'  provided  for  in  stock 
yards  of  the  best  class,  namely,  to  load  and  unload  and  care  for  "  in 
the  best  manner  all  live  stock  delivered  to  them  b}'  the  party  of  the  first 
part  [the  railroad  company]  at  their  own  risk  of  damage  while  so  doing, 
and  in  no  event  to  charge  more  than  sixty  cents  per  car  of  full  loads 
for  loading  and  axsXy  cents  per  car  for  unloading,  and  no  charges  to  be 
made  for  handling  less  than  full  loads,  as  per  way-bills."  The  Stock- 
Yards  Company-  also  agreed  to  become  liable  for  those  charges,  and  to 
collect  and  pay  over  to  the  railroad  compan}',  as  demanded  from  time 
to  time,  such  mone}'  as  came  into  its  hands,  the  charges  for  feeding 
and  caring  for  live  stock  not  to  be  more  than  was  charged  for  similar 
services  and  supplies  at  other  stock  yaids  of  the  country-.  The  railroad 
compan}',  upon  its  part,  agreed  to  pay  the  Stock-Yards  Company  the 
above  sums  for  loading  and  unloading  and  otherwise  acting  as  its  agent 
in  the  collection  of  freights  and  charges  upon  such  business  as  was  turned 
over  to  it  by  the  railroad  compan}- ;  that  it  would  require  all  cars  loaded 
at  yards  for  shipment  South  or  East  to  be  carefully  bedded,  which  the 
Stock-Yards  Company  was  to  do  at  the  rates  usually'  charged  in  other 
yards  ;  that  it  would  make  the  yards  of  the  Stock- Yards  Company  its 
"depot  for  deliver}'  of  all  its  Hve  stock,"  during  the  term  of  the  con- 
tract, and  not  build,  "  nor  allow  to  be  built,  on  its  right  of  wa}-,  any 
other  depot  or  yards  for  the  reception  of  live  stock."  The  delivery  of 
stock  in  cars  on  switches  or  sidings  provided  for  the  purpose  was  to  be 
considered  a  delivery  of  the  stock  to  the  Stock-Yards  Companv,  which, 
from  that  time,  was  to  be  responsible  for  the  stock  to  the  railroad  com- 
panv. To  protect  the  business  of  the  Stock-Yards  Company-  from  dam- 
age in  case  the  railroad  extended  its  track  over  the  Ohio  River,  the 
railroad  company  agreed  that  during  the  term  of  the  contract  the  rate 
of  freight  from  all  points  on  its  road  and  connections  should  "  not  be 
less  than  five  dollars  per  car  more  to  the  Union  Yards  of  Cincinnati 
than  the  rate  to  Covington  yards  from  the  same  points  ;  "  that  its  busi- 
ness arrangements  with  any  other  railroad  or  transportation  line  should 
be  subject  to  this  agreement ;  and  that  the  yards  of  the  Stock-Yards 
Company  "  shall  be  the  depot  for  all  live  stock  received  from  its  con- 
nections for  Cincinnati  or  Eastern  markets."  The  agreement  hy  its 
terms  was  to  remain  in  force  for  fifteen  years. 


COVINGTON    STOCK-YARDS   COMPANY   V.   KEITH.  105 

In  the  progress  of  the  cause  E.  W.  Wilson,  b}*  consent  of  parties, 
was  made  a  co-petitioner  and  co-respondent  with  Keilii. 

Hy  the  final  decree  it  was  found,  ordered,  and  decreed  as  follows  : 
"  It  is  the  duty  and  legal  obligation  of  tlie  Kentucky  Central  Railroad 
Company,  as  a  common  carrier  of  live  stock,  to  provide  suitable  and 
convenient  means  and  facilities  for  receiving  on  board  its  cars  all  live 
stock  offered  for  shipment  over  its  road  and  its  connections  from  the 
city  of  Covington,  and  for  the  discliarge  from  its  cars  of  all  live  stock 
brought  over  its  road  to  the  said  citv  of  Covington,  free  of  any 
charge  other  than  the  customar}'  transportation  charges  to  consignors 
or  consignees  ;  and  tliat  the  said  petitioners,  Keitli  and  Wilson,  live- 
stock dealers  and  brokers,  doing  business  at  the  cit}'  of  Covington,  and 
proprietors  of  the  Banner  Stock- Yards  at  that  place,  are  entitled  to  so 
ship  and  receive  over  said  road  such  live  stock  without  being  subject  to 
any  such  additional  charges  imposed  by  said  receiver,  said  railroad 
company,  or  other  person  or  corporation.  The  court  further  finds  and 
decrees  that  tlie  alleged  contract  entered  into  by  and  between  tlie  said 
railroad  company  and  the  said  Covington  Stock-Yards  Company,  of 
date  the  19th  day  of  November,  1881,  does  not  entitle  the  said  Stock- 
Yards  Company  to  impose  upon  any  shipper  of  live  stock  over  said 
road,  [)assing  such  stock  througli  the  yards  of  said  company  to  and 
from  tiie  cars  of  said  railroad  compan}',  any  charge  whatever  for  such 
passage.  It  is  stipulated  in  said  contract  that  said  Stock-Yards  Com- 
pau}'  shall  establish  and  maintain  suitable  yards  or  pens  for  receiving, 
housing,  feeding,  and  caring  for  live  stock,  and  to  receive  all  such 
stock,  and  load  and  unload  the  same  upon  and  from  the  cars  of  said 
company  transported  on  or  to  be  transported  over  said  road  for  a  com- 
pensation of  sixty  cents  per  car  load,  to  be  paid  by  said  railroad  company 
for  and  during  the  period  of  fifteen  years  from  the  date  of  said  contract, 
which  has  not  yet  expired,  while  the  said  railroad  company  agreed  that 
it  would  not  during  said  period  estal)lish  or  allow  to  be  established  on 
the  line  of  its  road  or  on  its  right  of  way  in  said  city  of  Covington  any 
other  i)latft)rin  or  depot  than  that  of  said  Stock-Yards  Company  for  the 
receipt  or  delivery  of  such  live  stock.  .  .  .  The  court  doth  further  find 
that  the  general  freight  depot  of  the  said  railroad  company-  in  the  said 
city  of  Covington,  at  the  terminus  of  its  road  between  Pike  and  Eighth 
Streets,  is  not  a  suitable  or  convenient  place  for  the  receipt  and  delivery 
of  live  stock  brought  to  the  said  city  or  to  be  shipped  therefrom  over 
said  road,  and  neither  said  railroad  company  nor  said  receiver  having 
provided  such  suitable  depot  or  place  therefor,  except  the  yards  of  said 
Stock-Yards  Company,  it  is  now  ordered  and  decreed  that  the  said  rail- 
road compan}'  and  said  receiver  shall  hereafter  receive  and  deliver  from 
and  to  the  said  Keith  &  Wilson  at  and  througli  the  said  Covington 
stock  yards  all  such  live  stock  as  ma}'  be  brought  to  them  or  offered  by 
them  for  shipment  over  said  road  and  its  connections,  upon  the  consent 
of  said  stock  yards,  in  writing,  that  it  may  be  so  done,  being  filed  in 
this  court  and  cause  on  or  before  the  1st  day  of  January  next  after  the 


106  COVINGTON    STOCK-YARDS   COMPANY   V.    KEITH. 

entry  of  this  decree,  free  of  any  cliai-ge  for  passing  throngh  said  3'ards 
to  and  frooa  the  cars  of  said  railroad  company.  In  default  of  sncli  con- 
sent being  so  filed,  it  is  ordered  and  decreed  that  upon  said  Keith  & 
Wilson  putting  the  platform  and  chute  erected  b\'  them  on  the  land  of 
said  Keith  adjacent  to  the  live-stock  switch  of  said  railroad  company' 
north  of  said  stock  yards  the  said  railroad  compau}'  and  said  receiver 
shall  receive  and  deliver  all  such  live  stock  to  said  Keith  &  Wilson  as 
shall  be  consigned  to  them  or  either  of  them  or  be  offered  b}"  them  or 
either  of  them  for  shipment  at  said  platform.  The  said  Keith  &  Wilson 
shall  provide  an  agent  or  representative  at  said  platform  to  receive  such 
cattle  as  they  may  be  notified  by  said  railroad  company  or  said  receiver 
are  to  be  delivered  to  them  thereat,  and  they  shall  give  the  said  rail- 
road company  or  said  receiver  reasonable  notice  of  any  shipment 
desired  to  be  made  b}-  them  from  said  platform  to  conform  to  the  de- 
parture of  live-stock  trains  on  said  road." 

The  railroad  compan}',  holding  itself  out  as  a  carrier  of  live  stock, 
was  under  a  legal  obligation,  arising  out  of  the  nature  of  its  emplo^'- 
ment,  to  provide  suitable  and  necessary  means  and  facilities  for  receiv- 
ing live  stock  offered  to  it  for  shipment  over  its  road  and  connections, 
as  well  as  for  discharging  such  stock  after  it  reaches  the  place  to  which 
it  is  consigned.  The  vital  question  in  respect  to  such  matters  is, 
whether  the  means  and  facilities  so  furnished  b}'  the  carrier  or  by  some 
one  in  its  behalf  are  sufficient  for  the  reasonable  accommodation  of 
the  public.  But  it  is  contended  that  the  decree  is  erroneous  so  far  as 
it  compels  the  railroad  company  to  receive  live  stock  offered  bj'  the  ap- 
pellees for  shipment  and  to  deliver  live  stock  consigned  to  them,  free 
from  any  charge  other  than  the  customary  one  for  transportation,  for 
merely  passing  into  and  through  the  3'ards  of  the  Covington  Stock- 
Yards  Compan}'  to  and  from  the  cars  of  the  railroad  compan}-.  As  the 
decree  does  not  require  such  stock  to  be  delivered  in  or  through  the 
yards  of  the  appellant,  except  with  its  written  consent  filed  in  this 
cause  ;  as  such  stock  cannot  be  properly-  loaded  upon  or  unloaded  from 
cars  within  the  limits  of  the  city,  except  b}'  means  of  inclosed  lots  or 
3'ards  set  apart  for  that  purpose,  and  conveniently' located,  in  or  through 
which  the  stock  ma}'  be  received  from  the  shipper  or  delivered  to  the 
consignee,  without  danger  or  inconvenience  to  the  public  in  the  vicinity 
of  the  place  of  shipment  or  discharge  ;  and  as  the  a[)pellant  has  volun- 
tarily undertaken  to  discharge  the  dut}'  in  these  matters  that  rests  u[)on 
the  railroad  company,  the  contention  just  adverted  to,  is,  in  effect,  that 
the  carrier  may,  without  a  special  contract  for  that  purpose,  require 
the  shipper  or  consignee,  in  addition  to  the  customary  and  legitimate 
charges  for  transportation,  to  compensate  it  for  supplying  the  means 
and  facilities  that  must  be  provided  by  it  in  order  to  meet  its  obligations 
to  the  public.     To  this  proposition  we  cannot  give  our  assent. 

When  animals  are  offered  to  a  carrier  of  live  stock  to  be  transported 
it  is  its  duty  to  receive  them  ;  and  that  duty  cannot  be  efficiently  dis- 
charged, at  least  in  a  town  or  city,  without  the  aid  of  yards  in  which 


COVINGTON   STOCK-YARDS   COMPANY   V.    KEITH.  107 

the  stock  offered  for  shipment  can  be  received  and  handled  with  safety 
and  without  inconvenience  to  tlie  pubUc  wliile  being  loaded  upon  the 
cars  in  which  the}'  are  to  be  transported.  So,  when  live  stock  reach 
the  place  to  which  tlic}-  are  consigned,  it  is  the  duty  of  the  carrier  to 
deliver  them  to  the  consignee  ;  and  such  delivery  cannot  be  safely  or 
effectively  made  except  in  or  through  inclosed  yards  or  lots,  convenient 
to  the  place  of  unloading.  In  other  words,  the  duty  to  receive,  trans- 
port, and  deliver  live  stock  will  not  be  fully  discharged,  unless  the 
carrier  maizes  such  provision,  at  the  place  of  loading,  as  will  enable  it 
to  properly  receive  and  load  the  stock,  and  such  provision,  at  the  place 
of  unloading,  as  will  enable  it  to  properly  deliver  the  stock  to  the 
consignee. 

A  railroad  company,  it  is  true,  is  not  a  carrier  of  live  stock  with  all 
the  responsil)ilities  that  attend  it  as  a  carrier  of  goods.  North  J\'nn. 
Railroad  v.  Commercial  Bank,  123  U.  S.  727,  734.  There  are  recog- 
nized limitations  upon  the  duty  and  responsibility  of  carriers  of  inaui- 
raate  property'  that  do  not  apply  to  carriers  of  live  stock.  These 
limitations  arise  from  the  nature  of  the  particular  property  transported. 
"But,"  tliis  court  said,  in  the  case  just  cited,  "  notwitlistanding  this 
difference  in  duties  and  responsibilities,  the  railroad  company,  when  it 
undertakes  generally  to  carry  such  freight,  becomes  subject,  under 
similar  conditions,  to  the  same  obligations,  so  far  as  the  deliver}'  of 
the  animals  which  are  safely  transported  is  concerned,  as  in  the  case  of 
goods.  The}'  are  to  be  delivered  at  the  place  of  destination  to  the 
party  designated  to  receive  them  if  he  presents  himself,  or  can  with 
reasonable  efforts  be  found,  or  to  his  order.  No  obligation  of  the  car- 
rier, whether  the  freight  consists  of  goods  or  live  stock,  is  more  strictly 
enforced."  ^  The  same  principle  necessarily  applies  to  the  receiving  of 
live  stock  by  the  carrier  for  transportation.  The  carrier  must  at  all 
times  be  in  proper  condition  both  to  receive  from  tlie  shipper  and  to 
deliver  to  the  consignee,  according  to  the  nature  of  the  property  to  be 
transported,  as  well  as  to  the  necessities  of  the  respective  localities  in 
which  it  is  received  and  delivered.  A  carrier  of  live  stock  has  no  more 
right  to  make  a  special  charge  for  merely  receiving  or  merely  delivering 
such  stock,  in  and  through  stock  yards  provided  by  itself,  in  order  that 
it  may  properly  receive  and  load,  or  unload  and  deliver,  such  stock, 
than  a  carrier  of  passengers  may  make  a  special  charge  for  the  use  of 

1  Myrick  v.  Michigan  Central  Railroad,  107  U   S.  102,  107  ;  Hall  &  Co.  v.  Henfro, 

3  Met  (Ky.)  51,  54;  Mynard  v.  Syracuse  &  Binghamton  Eailroad,  71  N.  Y.  180; 
Smith  V.  New  Haven  &  Northampton  Railroad,  12  Allen,  531,  53."3  ;  Kimball  v.  Rutland 
&  Burlington  Railroad,  26  Vt.  247  ;  South  &  North  Alabama  Railroad  Company  v. 
Heulein,  52  Ala.  606,  613  ;  Wilson  v.  Hamilton,  4  Ohio  St,  722,  740  ;  Ayres  r.  Chicago 
&  Northwestern  Railroad,  71  Wis.  372,  379,  381  ;  McCoy  v.  K.  &  D.  M.  R.  Co.,  44 
Iowa,  424,  426;  Maslin  v.  B.  &  O.  R.  R.  Co.,  14  W.  Va.  180,  188;  St.  Louis  &  South- 
eastern Railway  v.  Dorman,  72  111.  504;  Moulton  v.  St,  Paul,  Minneapolis,  iJic.  Rail- 
way, 31  Minn.  85,  87  ;  Kansas  Pacific  Railway  c.  Nichols,  9  Kas.  235,  248  ;  Clarke  v. 
Rochester  &  Syracuse  Railroad,  14  N.  Y  570,  573;  Palmer  v.  Grand  Junction  Railway, 

4  M.  &  W.  749. 


108  COVINGTON    STOCK-YARDS    COMPANY   V.    KEITH. 

its  passenger  depot  by  passengers  when  proceeding  to  or  coming  from 
its  trains,  or  than  a  carrier  ma^'  charge  the  shipper  for  the  use  of  its 
general  freight  depot  in  merely  delivering  his  goods  for  shipment,  or 
the  consignee  of  such  goods  for  its  use  in  merely  receiving  them  there 
within  a  reasonable  time  after  they  are  unloaded  from  the  cars.  If  the 
carrier  may  not  make  such  special  charges  in  respect  to  stock  yards 
which  itself  owns,  maintains,  or  controls,  it  cannot  invest  another  cor- 
poration or  company  with  authority-  to  impose  burdens  of  that  kind 
apon  shippers  and  consignees.  The  transportation  of  live  stock  begins 
with  their  delivery  to  the  carrier  to  be  loaded  upon  its  cars,  and  ends 
only  after  the  stock  is  unloaded  and  delivered,  or  offered  to  be  deliv- 
ered, to  the  consignee,  if  to  be  found,  at  such  place  as  admits  of  their 
being  safely  taken  into  possession. 

We  must  not  be  understood  as  holding  that  the  railroad  company',  in 
this  case,  was  under  any  legal  obligation  to  furnish,  or  cause  to  be  fur- 
nished, suitable  and  convenient  appliances  for  receiving  and  delivering 
live  stock  at  every  point  on  its  line  in  the  city  of  Covington  where  per- 
sons engaged  in  buying,  selling,  or  shipping  live  stock,  chose  to  estab- 
lish stock  yards.  In  respect  to  the  mere  loading  and  unloading  of  live 
stock,  it  is  only  required  by  the  nature  of  its  employment  to  furnish 
such  facilities  as  are  reasonably  sufficient  for  the  business  at  that  city. 
So  far  as  the  record  discloses,  the  yards  maintained  by  the  appellants 
are,  for  the  purposes  just  stated,  equal  to  all  the  needs,  at  that  city,  of 
shippers  and  consignees  of  live  stock  ;  and  if  the  appellee  had  been 
permitted  to  use  them,  without  extra  charge  for  mere  "  yardage,"  they 
would  have  been  without  just  ground  of  complaint  in  that  regard  ;  for 
it  did  not  concern  them  whether  the  railroad  company  itself  maintained 
stock  yards,  or  employed  another  company  or  corporation  to  supply 
the  facilities  for  receiving  and  delivering  live  stock  it  was  under  obli- 
gation to  the  public  to  furnish.  But  as  the  appellant  did  not  accord  to 
appellees  the  privileges  they  were  entitled  to  from  its  principal,  the 
carrier,  and  as  the  carrier  did  not  offer  to  establish  a  stock  yard  of  its 
own  for  shippers  and  consignees,  the  court  below  did  not  err  in  requir- 
ing the  railroad  company  and  the  receiver  to  receive  and  deliver  live 
stock  from  and  to  the  appellees  at  their  own  stock  yards  in  the  imme- 
diate vicinity  of  appellant's  yards,  when  the  former  were  put  in  proper 
condition  to  be  used  for  that  purpose,  under  such  reasonable  regulations 
as  the  railroad  company  might  establish.  It  was  not  within  the  power 
of  the  railroad  company,  by  such  an  agreement  as  that  of  November 
19,  1881,  or  by  agreement  in  any  form,  to  burden  the  appellees  with 
charges  for  services  it  was  bound  to  render  without  any  other  compen- 
sation than  the  customary  charges  for  transportation. 

Decree  affirmed. 


BUTCHEES',   ETC.    STOCK-YARD    CO.    V.   LOUIS.    &   NASH.   K.         109 

BUTCHP:RS'    &    DROVERS'    STOCK-YARU   CO.    v.    LOUIS- 
VILLE  &   NASHVILLE   RAILROAD. 

Circuit  Court  of  Appeals,  Sixth  Circuit,  1895. 

[67  Fed.  35  ] 

Taft,  Circuit  Judge,  delivered  the  opinion  of  the  court. ^ 

This  is  an  action  in  equity  by  a  stock-yards  company  for  a  manda- 
tory injunctiou  to  compel  a  railroad  company  to  build,  or  to  allow  to 
be  built,  a  side  track  connecting  a  spur  track  of  the  railroad  company 
with  the  stock  yards  of  the  complainant,  and  there  to  deliver  and  re- 
ceive all  cattle  consigned  to  and  shipped  by  the  complainant.  The 
defendant  answered,  and  the  cause  was  heard  on  pleadings  and  evi- 
dence, and  resulted  in  a  dismissal  of  the  bill.  The  complainant  ap- 
peals. The  facts  are  substantially  as  follows:  The  complainant,  the 
Butchers'  &  Drovers'  Stock-Yards  Company,  was  organized  under 
the  laws  of  Tennessee,  and  entered  upon  its  business  in  188i).  It 
has  a  stock  yard  within  the  city  limits  of  the  city  of  Nashville,  and 
near  to  the  business  centre  thereof.  The  Louisville  &  Nashville 
Railroad  Company  is  a  corporation  of  Kentucky,  whose  line  of 
railroad  extends  to  and  through  Nashville  from  Louisville.  In  1890 
the  city  council  of  the  city  of  Nashville  passed  an  ordinance  permit- 
ting the  defendant  company  to  lay  a  spur  track  from  its  main  track 
along  Front  Street  in  said  city.   .  .   . 

Sidings  were  laid  by  the  defendant  from  the  spur  track  to  the  prop- 
erty of  W.  G.  Bush  &  Co.,  Jacob  Shaffer,  Levi  Langham,  and  the 
Capitol  Electric  Company,  and  others,  under  contracts  made  b}^  the 
railroad  company  with  these  parties,  in  each  of  which  the  defendant 
retained  the  right  to  disconnect  the  siding  from  the  spur  track  at  any 
time  without  notice  to  the  other  party.  The  persons  or  firms  with 
whom  these  contracts  were  made  were  manufacturing  firms  or  coal 
dealers.  They  all  owned  land  abutting  on  Front  Street.  Complain- 
ant is  engaged  in  receiving,  feeding,  weighing,  selling,  and  shipping 
live  stock  for  the  general  public.  Its  yards  are  a  block  away  from 
the  defendant's  main  line.  ...  In  1891,  after  the  spur  track  and 
the  sidings  already  alluded  to  had  been  constructed,  the  complainant 
requested  the  defendant  that  a  siding  be  so  constructed  in  front  of 
complainant's  property  as  to  allow  the  transportation  of  live  stock 
to  and  from  its  establishment  in  car-load  lots,  and  that  the  same 
facilities  for  transportation  be  afforded  to  it  as  were  enjoyed  by 
Bush  &  Co.  and  the  others  who  then  had  sidings.  .   .  . 

Defendant's  attorney  answered  complainant's  request,  and  stated 
that,  inasmuch  as  the  siding  proposed  appeared  to  be  desired  solely 
for  the  purpose  of  receiving  and  delivering  live  stock  at  defendant's 
yards,  and  the  railroad  company  had  provided  a  station  for  this 
purpose  at  Nashville,  the  establishment  of  another  was  declined. 
^  Part  of  tlie  opiuiou  is  omitted.  —  Ed. 


110        butchers',   etc.    STOCK-YAED    CO.    V.    LOUIS.    &    NASH.    R. 

The  stock-yards  station  referred  to  was  that  of  the  Union  Stock- 
Yards  Company,  .  .  .  about  a  mile  and  a  half  from  the  stock  j^ards 
of  the  complainant.  The  evidence  in  the  record,  some  of  which  was 
admitted,  and  some  of  which  was  excluded  by  the  court  below,  shows 
that  no  charge  beyond  the  ordinary  charge  for  transportation  is  made 
for  the  loading  and  unloading  of  cattle  at  the  stock  yards  to  the 
shipper  or  consignee;  that  after  the  cattle  have  been  unloaded,  and 
have  not  been  taken  away  by  the  consignee  from  the  yard  for  two  or 
three  hours,  they  are  then  turned  into  the  pens  of  the  stock  yards, 
where  a  charge  of  two  dollars  per  car  for  a  day  or  part  of  a  day  is 
made  by  the  stock-yards  company  for  keeping  them,  until  the  con- 
signee takes  them  away.  When  cattle  arrive  at  night,  the  usual 
result  is  that  they  are  turned  into  the  pens,  because  the  consignee 
cannot  drive  them  through  the  streets  at  night.  There  was  evidence 
also  of  a  charge  of  five  or  ten  cents  per  head  by  the  stock-yards  com- 
pany if,  after  the  cattle  have  been  priced  in  the  Union  Yards,  they 
are  removed  Avithout  sale  to  another  stock  yard.   .   .   . 

It  is  insisted  that  the  court  will  not  establish  a  right  that  ma^^  be 
dissolved  at  the  will  of  the  defendant.  The  railroad  company  reserves 
the  right  in  its  contract  with  Bush  to  take  up  the  spur  track  at  any 
time,  and  therefore  it  is  said  that  it  cannot  be  compelled  to  do  that 
for  the  complainant  which  it  might  at  once  cease  to  do  by  taking  up 
the  track.  This  objection  is  untenable.  The  gravamen  of  the  charge 
in  the  bill  is  that  the  railroad  company  is  discriminating  against  the 
complainant,  and  in  favor  of  those  to  whom  sidings  from  the  spur 
track  are  permitted,  and  that  it  should  be  granted  equal  facilities 
with  such  persons.  The  prayer  is  in  form  for  an  injunction  against 
the  discrimination.  If  the  spur  track  is  taken  up,  then  all  who  enjoy 
it  will  be  placed  on  an  equal  footing  and  at  an  equal  disadvantage. 
But  complainant's  claim  is  that,  while  others  enjoy  the  spur  track,  it 
also  should  have  the  same  facilities.  It  is  clearly  no  defense  to  a 
charge  of  discrimination  that  the  facilities  furnished  the  favored 
person  may  be  withdrawn  at  the  will  of  the  one  who  grants  them. 

We  are  therefore  brought  to  the  issue  whether  or  not  there  is  any 
discrimination  between  those  who  have  side-track  connections  on 
Front  Street  and  the  complainant.  This  depends  on  two  questions: 
First.  Is  it  a  discrimination  which  can  be  controlled  or  restrained 
by  the  courts  for  a  railroad  company  to  furnish  a  side  track  to  one 
of  its  customers,  and  to  refuse  such  accommodation  to  another 
similarly  situated?  Second.  Conceding  an  affirmative  answer  to  the 
first  question,  is  thei'e  such  a  difference  between  the  facilities  de- 
manded by  the  complainant  and  those  extended  to  its  neighbors  on 
Front  Street,  in  respect  of  the  comparative  burdens  which  must  be 
assumed  by  the  railway  company  in  granting  them,  as  to  justify  the 
latter  in  making  the  distinction  it  insists  upon? 

The  first  question  is  one  full  of  difficulty,  both  at  common  law, 
upon  the  principles  of  which  this   case  must  be  decided,  and   also 


butchers',   etc.    stock-yard    CO.   V.   LOUIS.    &   NASn.   R.         Ill 

under  the  interstate  commerce  act.  Because  we  are  able  to  satis- 
factorily dispose  of  the  case  on  the  second  question,  we  reserve  con- 
sideration of  the  first  until  the  case  arises  which  requires  it.  AVe  are 
clearly  of  opinion  that,  however  unjust  and  unlawful  it  uia}^  be  for  a 
railroad  company  having  furnished  a  side  track  to  one  shipper  to 
refuse  it  to  another  similarly  situated,  the  difference  in  this  case  be- 
tween the  business  of  the  complainant  and  that  of  the  other  abutters 
upon  the  spur  track  is  so  great  as  to  make  the  refusal  of  the  railroad 
company  to  grant  the  side  track  to  the  complainant  entirely  reason- 
able. The  difference  between  the  duties  of  a  common  carrier  in  the 
transportation  of  live  stock  and  of  dead  freight  has  been  remarked 
upon  more  than  once  by  the  Supreme  Court  of  the  United  States. 
North  Pennsylvania  R.  Co.  v.  Commercial  Nat.  Bank,  123  U.  S. 
727-734;  Stock-Yards  Co.  v.  Keith,  139  U.  S.  128-133.  The  evi- 
dence clearly  shows  that  the  delivery  of  car-load  lots  of  dead  freight 
and  the  receipt  of  them  by  side  tracks  is  much  less  onerous,  and 
involves  much  less  care  and  responsibilit}'^  for  the  railroad  company, 
than  would  the  receipt  of  live  stock  from  a  private  yard  by  side 
track.  One  of  the  chief  reasons  why  deliveries  and  shipments  of  rail- 
road car-load  lots  by  side  track  are  possible  and  consistent  with  the 
conduct  of  the  business  of  a  large  trunk  line  is  that  the  loaded  car 
may  stand  upon  a  side  track  for  hours,  or  even  a  day,  until  the  rail- 
road company  finds  it  convenient  to  back  its  engine  down  and  take  it. 
Such  delays  are  utterly  impossible  in  the  proper  transportation  of  car 
loads  of  live  stock.  When  they  are  loaded,  they  must  be  moved. 
The  evidence  shows  that  in  other  respects  the  supervision  of  the 
switching  of  cattle  cars  would  be  much  more  expensive  and  trouble- 
some to  the  railway  company  than  dead  freight.  Indeed,  it  hardly 
needs  expert  evidence  to  establish  it.  There  is  no  ground,  therefore, 
for  any  charge  of  unjust  discrimination  against  the  defendant  railway 
company  as  between  complainant  and  the  Front  Street  shippers. 

We  come  now  to  the  charge  of  discrimination  as  between  the  Butch- 
ers' &  Drovers'  Stock-Yards  Company  and  the  Union  Stock-Yards 
Company.  [The  court  here  stated  the  case  of  Stock-Yards  Co.  v. 
Keith,  139  U.  S  128,  and  quoted  at  length  from  the  opinion  in  that 
case.] 

In  view  of  the  principles  laid  down  in  this  case,  the  complainant 
has  no  ground  for  objection  to  the  arrangement  between  tlie  Union 
Stock-Yards  Company  and  the  Louisville  &  Nashville  Bailroad  Com- 
pany. The  latter  uses  the  chutes  and  yards  of  the  Uni(m  Stock-Yards 
Company  to  deliver  and  receive  cattle  at  that  point  as  its  station 
without  any  yardage  charge  or  fee  for  the  proper  loading  and  unload- 
ing of  cattle.  The  evidence  wholly  fails  to  support  the  charge  of  the 
bill  that  the  facilities  afforded  by  the  Union  Stock  Yards  are  not 
ample  for  the  business  of  Nashville.  The  evidence  establishes  that 
no  charge  is  made  by  the  Union  Stock -Yards  Company  for  two  hours 
after  the  cattle  are  delivered  from  the  cars.     There  is  no  evidence  to 


112  WALKER  V.   KEEN  AN, 

show  that  it  would  be  unreasonable  in  the  railroad  company,  were  it 
the  owner  of  the  stock  yards,  to  impose  a  charge  for  delay  of  the 
consignee  in  taking  his  cattle  beyond  two  hours  after  unloading; 
and,  in  the  absence  of  such  showing,  we  cannot  say  that  it  is  unrea- 
sonable for  the  railroad  company  to  permit  its  agent,  the  stock-3'ards 
compan}',  to  make  a  charge  of  two  dollars  per  car  for  turning  the 
cattle  into  the  pens  and  keeping  them  there  after  such  a  delay.  The 
discrimination  averred  and  sought  to  be  proven  by  evidence  that, 
after  the  cattle  have  been  priced  in  the  pen,  they  cannot  be  taken  to 
another  yard  without  paying  a  fee,  concerns  the  business  of  the 
stock-yards  company,  and  not  that  of  the  railroad  company,  whose 
responsibility  ends  after  the  cattle  are  properly  delivered  or  tendered 
to  the  consignee.  Of  course,  the  railroad  company  in  delivering  the 
cattle  to  the  stock-yards  company,  to  keep  until  the  appearance  of  the 
consignee,  can  incur  only  a  reasonable  charge  for  the  keeping  of  the 
cattle.  More  than  this,  the  consignee  is  not  obliged  to  pay  the  stock- 
yards company.  If,  however,  he  thereafter  chooses  to  deal  with  the 
stock-yards  compan}'  as  a  factor  or  sales  agent,  and  to  put  a  price 
upon  his  cattle  for  sale,  the  charges  then  imposed  by  the  regulations 
of  the  stock-yards  company,  in  case  of  a  withdrawal  of  the  cattle  to 
another  stock  yard  for  sale,  are  wholly  outside  the  question  of  dis- 
crimination by  the  railroad  company  as  a  common  carrier.  The 
contract  between  the  defendants  and  the  Union  Company  requires 
rates  charged  by  the  latter  to  be  reasonable.  There  is  no  attempt  in 
the  record  to  show  that  the  charge  for  the  simple  keep  of  the  cattle  in 
the  pens  is  unreasonable  or  any  higher  than  the  railway  company 
itself  might  charge  for  such  service. 

The  decree  of  the  court  below  is  affirmed,  with  costs. 


WALKER   V.    KEENAN. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  1896. 

[73  Fed.  755.] 

Showalter,  Circuit  Judge. ^  In  Covington  Stock-Yards  Co.  v. 
Keith,  139  U.  S.  128,  ...  the  court  ordered  the  receivers,  in  the 
event  that  they  or  their  agent  in  that  behalf,  the  Covington  Stock- 
Yards  Company,  should  choose  not  to  permit  Keith  thereafter  to 
take  his  cattle  through  their  yards  without  the  60  cents  charge,  to 
allow  him  to  replace  his  platforms  and  chutes,  and  to  unload  and 
deliver  to  him  thereat  (he,  or  some  agent  employed  by  him,  being 
then  present  to  take  charge  of  such  cattle)  all  cattle  consigned  to  him 
or  to  his  yards.  This  ruling  was  affirmed  by  the  Supreme  Court  of 
the  United  States. 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


WALKER   V.    KP:ENAN.  113 

As  incidental  to  its  business  of  transporting  or  hauling  cattle,  a 
railroad  company  must  provide  the  means  of  loading,  unloading,  and 
caring  for  such  freight  pending  its  delivery  to  the  consignee.  The 
hauling  the  cattle  from  one  point  to  another,  and  the  providing  the 
car,  track,  engine,  and  servants  for  that  purpose,  are  no  more  a  part 
of  the  service  rendered  by  the  carrier  than  are  the  loading  and  un- 
loading and  the  providing  the  appliances  and  servants  for  those  pur- 
poses. Nor,  in  the  nature  of  things,  is  there  any  reason  why,  if  the 
public  convenience  be  subserved  thereby,  the  compensation  may  not 
be  apportioned  so  that  so  nuich  may  be  paid  for  the  loading  and  the 
hauling,  and  so  much  for  the  unloading  and  the  care  of  the  animals 
pending  delivery.  It  was  not  necessarily  a  hardship  or  wu'ong,  as 
against  the  ordinary  consignee  at  Covington,  that  he  pay  the  charge 
of  60  cents  per  car  for  unloading,  etc.,  to  the  agent  in  charge  of  the 
stock  yards  there.  Such  charge  ought,  of  course,  to  be  specified,  as 
now  provided  by  the  interstate  commerce  law,  in  connection  with  the 
tariff  schedule,  in  order  that  the  shipper  may  be  advised  of  the  same. 
The  question  whether  a  person  to  whom  cattle  were  consigned  for 
delivery  at  the  Covington  Stock  Yards  could  have  resisted  the  charge 
of  60  cents  per  car  was  not  before  the  court  in  the  Keith  Case;  nor 
could  the  court  have  ruled  in  the  affirmative  on  such  question,  assum- 
ing due  notice  to  the  shipper  beforehand,  without,  in  effect,  compel- 
ling the  railroad  company  to  perform,  for  nothing,  part  of  the  service 
comprehended  in  its  obligations  as  a  carrier.  Keith's  Case  stood  on 
its  own  facts.  Keith  having,  without  inconvenience,  so  far  as 
appears,  to  the  public  or  to  the  railroad  company,  and  apparently  by 
its  permission  or  the  permission  of  the  receivers,  himself  provided 
the  facilities  and  appliances  for  unloading  into  his  yards  cattle  con- 
signed to  his  firm,  the  railroad  company  or  the  receivers  representing 
it,  on  the  one  hand,  no  longer  owed  to  him,  as  respected  cattle  eon- 
signed  to  his  yards,  the  duty  of  providing  such  structures  and  appli- 
ances ;  nor,  on  the  other,  was  Keith  bound  to  pay  the  railroad  com- 
pany or  its  agent  in  that  behalf,  the  Covington  Stock-Yards  Com- 
pany, any  charge  which,  on  the  face  of  the  case,  was  distinctly  a 
compensation  for  the  performance  of  such  duty.  The  Case  of  Keith, 
furthermore,  shows  the  expediency  and  propriety  of  separating  and 
apportioning  the  compensation  to  the  earner,  so  that  the  instrumen- 
talities for  and  the  service  of  unloading  need  not  be  paid  for  when 
the  consignee  has  no  occasion  to  use  said  instrumentalities  or  to  exact 
such  service.  That  decision,  on  its  ultimate  and  essential  facts,  is 
that  a  railroad  company,  when  the  means  for  the  unloading  and 
delivery  of  cattle  have  been  provided  by  the  consignee  himself  at  a 
convenient  point  on  its  line  of  road,  may  not  refuse  to  make  such 
delivery  for  the  sole  and  only  purpose  of  compelling  such  consignee 
to  pay  a  charge  fixed  by  the  company  in  response  to  its  obligation  to 
provide  the  means  of  unloading  for  consignees  who  must,  necessarily, 
require  that  service.     If  Keith's  yards  had  been  at  some   point  in 


114  WALKER   V.   KEEXAN. 

Covington,  remote  from  the  Ken  tuck}'  Central  track,  and  he  had,  by 
the  license  of  the  Kentuckj'  Central  Railroad  Company  or  the  receiv- 
ers, extended  a  track  of  his  own  from  the  Kentucky  Central  track  to 
his  yards,  and  had  there  equipped  a  station  for  unloading,  there 
Avould  have  been  no  obligation  on  the  railroad  company  to  Keith  or 
his  patrons  to  provide  a  depot  on  its  line  for  the  unloading  of  cattle 
consigned  to  his  yards;  nor  could  Keith  have  referred  to  such  sup- 
posititious obligation  as  a  reason  for  resisting  compensation  to  the 
railroad  company  for  the  service  of  moving  cattle  ears  from  its  line 
over  his  track  to  his  yards. 

In  the  case  at  bar,  appellants,  with  their  own  engines  and  switching 
crew,  remove  the  cars  laden  with  cattle  from  a  point  on  the  Chicago 
end  of  their  line,  over  the  track  of  the  Union  Stock-Yards  &  Transit 
Company,  to  the  Union  Stock  Yards.  For  this  transfer  from  their 
own  line  to  the  stock  yards,  they  charge,  as  stated  on  the  tariff 
schedule,  S2  per  car.  All  the  petitioners  do  business  at  the  Union 
Stock  Yards.  It  is  the  understanding  between  them  and  appellants 
that  cattle  cars  consigned  to  them  are  to  be  taken  to  the  Union  Stock 
Yards,  and  there  unloaded.  Upon  the  general  and  ordinary  obliga- 
tion of  a  connnon  carrier  of  such  freight  to  provide  the  appliances 
for  unloading,  and  upon  the  fact  that  appellants  have  not  provided 
means  for  unloading  and  delivering  cattle  at  their  freight  depot  in 
Chicago,  petitioners  argue:  First,  that  the  §2  per  car  is  for  depot 
facilities  at  the  stock  yards;  and,  second,  that  the  stock-yards  station 
must  be  held  to  be  appellants'  ''Chicago  station,"  in  the  same  sense 
as  would  be  the  terminal  station  at  Twelfth  and  State  Streets  if  cattle 
yards  and  facilities  for  unloading  were  there  provided.  But  the 
obligation  of  appellants  to  furnish  delivery  facilities  upon  their  line 
of  road  in  Chicago  is  not  due  to  these  petitioners  with  respect  to 
cattle  which  appellants  are  expected  to  bring  to  the  Union  Stock 
Yards.  Petitioners  do  not  desire  their  cattle  unloaded  and  delivered 
at  any  point  in  Chicago  on  appellants'  line  of  road.  The  S"2  per  car 
is  not  a  charge  for  the  use  of  the  inclosures  and  station  fittings  at  the 
stock  yards,  but  for  moving  the  cars  from  the  line  of  appellants'  road, 
and  over  the  line  of  another  company  (which  company  exacts  from 
appellants  a  toll  of  80  cents  per  car),  to  a  point  in  Chicago  on  said 
last-named  line.  The  case  is  the  same  as  though  petitioners  them- 
selves owned  the  stock  yards,  and  the  delivery  station  there,  and  the 
tracks  leading  to  said  station,  and  appellants  charged  them  81.20  for 
transferring  a  car  from  appellants'  line  in  Chicago  to  said  stock- 
yards station.  If  facilities  for  unloading  cattle  cars  were  provided 
by  appellants  at  their  station  in  Chicago  (the  showing  of  the  record 
being  otherwise,  as  it  is),  the  fact  would  be  immaterial,  since  the 
petitioners'  cattle  must  be  taken  by  appellants  to  the  Union  Stock 
Yards.  Appellants'  failure  to  supply  unloading  facilities  at  its 
Chicago  terminal  station  can  in  no  way  affect  the  rights  of  a  litigant 
who,  in  view  of  the  question  at  issue,  could  in  no  event  have  benefited 
bv  such  facilities. 


WALKER   V.    KEENAN.  115 

The  learned  counsel  for  appellees  treat  the  Covington  Case  as  a  pro- 
nouncement by  the  supreme  court  that  the  receivers  there  must  forego 
their  GO  cents  per  car,  and  let  Keith's  cattle  be  delivered  through  the 
Covington  Stock  Yards,  unconditionally.  On  the  contrary,  the 
essential  and  central  fact  upon  which  the  judgment  went  was,  as 
already  explained,  that  Keith's  yards  adjoined  the  track,  and  he  had, 
without  hurt  to  the  railroad  company  or  to  the  public,  and  apparently 
by  the  license  of  the  company,  provided  the  means  of  unloading  into 
his  own  yards.  He  had  no  occasion  to  avail  himself  of  the  service 
of,  and  the  instrumentalities  provided  by,  the  Covington  Stock-Yards 
Company,  the  concern  which  had  assumed,  to  that  extent,  the  duty  of 
the  carrier;  hence  the  order  that  his  cattle  must  either  be  unloaded 
into  his  own  j'ards,  or  else  passed  free  of  charge  through  the  yards 
contf oiled  by  the  Covington  Stock- Yards  Company  for  the  railroad. 
If  the  rule  of  law  had  been  as  counsel  for  these  appellees  contend, 
then  the  order  would  have  been  that  Keith's  cattle  be  unloaded  free 
of  charge  into  the  yards  used  by  the  railroad  compan}',  without  any 
alternative.  The  alternative  implies  that  except  in  the  case  of  Keith, 
or  of  a  person  having  cattle  yards  and  unloading  facilities  in  Coving- 
ton similarly  situated  with  respect  to  the  road  operated  by  the 
receivers,  the  yards  provided  by  the  railroad  company  or  the  re- 
ceivers as  a  place  of  delivery  must  be  used,  and  the  60  cents  paid  as 
a  proper  item  in  the  freight  charge.  To  any  assumed  rule  of  law  that 
a  carrier  could  not  divide  into  two  or  more  items  his  freight  charge 
for  carrying  live  stock,  so  that  the  instrumentalities  for  unloading 
and  delivery  need  not  be  paid  for  by  consignees  who  are  themselves 
prepared  to  receive  their  cattle  directly  from  the  cars,  the  decision 
in  the  Covington  Case  cannot  be  referred.  The  opinion  states  no 
such  rule;  nor  can  any  such  rule  be  evolved  therefrom  consistently 
with  the  judgment  of   the  court. 

When,  as  here,  the  delivery  is  to  be  made  in  Chicago,  but  at  a 
point  away  from  the  carrier's  line,  and  by  means  of  a  track  not  owned 
or  possessed  by  the  carrier,  the  printed  schedule  of  such  carrier  show- 
ing in  two  items  the  compensation  exacted  for  the  haul  to  Chicago, 
and  that  exacted  for  the  transfer  in  Chicago  to  the  point  of  delivery, 
the  theory  that  such  carrier  is  bound  by  law  to  unload  such  freiglit 
at  a  station  on  its  own  line  in  Chicago,  and  that  the  transfer  from  its 
line  to  a  point  on  the  other  line  for  the  purpose  of  delivering  at  the 
latter  point  (being  an  equivalent  or  substitute  for  what  ought  to  have 
been  done  pursuant  to  such  supposed  obligation)  is  comprehended  in 
the  service  of  hauling  to  some  station  on  its  line  in  Chicago,  is 
unsound.  One  side  of  the  proposed  equation  is  mythical.  There  is 
no  obligation  on  the  carrier  in  such  a  case,  and  as  to  such  a  consign- 
ment, to  unload  at  a  station  on  its  line  in  Chicago,  or  to  provide 
unloading  and  delivery  facilities  at  such  station.  In  the  carrier's 
charge  for  the  haul  to  any  station  or  point  on  its  line  in  Chicago,  in 
such  a  case,  there  is  not  comprehended  any  compensation  for  unload- 


116  AYRES   V.   CHICAGO   &    NORTHWESTERN    RAILWAY. 

ing  facilities  at  such  station  or  point.  The  23^  cents  per  hundred- 
weight pays  these  appellants  for  hauling  from  Kansas  City  to  a 
station  or  point  on  their  line  in  Chicago,  the  $2  per  car  pays  for  the 
transfer  thence  to  the  stock  yards,  where  the  consignees  desire  the 
delivery  to  be  made. 

The  Covington  Case  was  prior  to  the  interstate  commerce  law. 
Within  the  express  terms  of  the  second  paragraph  of  section  6,  quoted 
in  the  statement  which  precedes  this  opinion,  the  total  compensation 
to  the  carrier  for  his  services  as  carrier  may  be  divided  into  at  least 
two  items.  The  separation  by  these  appellants  of  their  charge  for 
loading  and  hauling  to  Chicago  from  their  charge  for  transferring 
from  their  line  in  Chicago  to  a  specified  point  in  Chicago,  away  from 
their  line,  is  authorized  by  the  statute.  No  satisfactory  reason  sug- 
gests itself  against  the  legality  and  propriety,  under  special  circum- 
stances, such  as  exist  here  and  as  existed  in  the  Covington  Case,  of 
such  a  division  of  his  compensation  by  a  carrier  even  apart  from  the 
statute.  The  learned  district  judge  who  made  the  order  appealed 
from  evidently  understood  the  opinion  in  the  Covington  Case  to  imply 
that  no  division  of  a  carrier's  charge  could  be  made.  If  this  were 
the  sound  construction  of  that  case,  the  statute  has  changed  the  rule, 
as  already  suggested. 

It  is  not  suggested,  assuming  any  such  charge  as  is  here  in  ques- 
tion to  be  legal  at  all,  that  the  amount  is  unreasonable.  The  conten- 
tion that  the  carriers  must  move  cattle  from  their  lines  of  road  over 
the  track  of  the  stock-yards  company  to  the  stock  yards,  without 
compensation  other  than  as  contained  in  their  charges  for  hauling  to 
points  on  their  respective  lines  in  Chicago  (and  this  is  what  the 
claim  of  these  appellees  amounts  to),  is  invalid. 

The  order  appealed  from  is  reversed,  and  the  cause  remanded,  with 
the  direction  that  said  order  be  vacated,  and  the  intervening  petitions 
dismissed,  for  want  of  equity. 


AYRES   V.   CHICAGO    &   NORTHWESTERN  RAILWAY. 
Supreme  Court  of  Wisconsin,   1888. 

[71   Wis.  372  :  37  N.  W.  432] 

The  amended  complaint  is  to  the  effect  that  the  defendant,  being  a 
common  carrier  engaged  in  the  transportation  of  live  stock,  and  accus- 
tomed to  furnish  cars  for  all  live  stock  offered,  was  notified  by  the 
plaintiffs,  on  or  about  October  13,  1882,  to  have  four  such  cars  for  the 
transportation  of  cattle,  hogs,  and  sheep  at  its  station  La  Valle,  and 
three  at  its  station  Reedsburg,  ready  for  loading  on  Tuesday  morning, 
October  17,  1882,  for  transportation  to  Chicago;  that  the  defendant 
neglected  and  refused  to  provide  such  cars  at  either  of  said  stations  for 
four  days,  notwithstandiog  it  was  able  and  might  reasonably  have  done 


AYRES   V.   CHICAGO    &   NORTHWESTERN   RAILWAY.  117 

SO  ;  and  also  neglected  and  refused  to  carry  said  stock  to  Chicago  with 
reasonable  diligence,  so  that  the}'  arrived  there  four  days  later  than 
they  otherwise  would  have  done  ;  whereby  tlie  plaintiffs  sutfered  loss 
and  damage,  by  decrease  in  price  and  otherwise,  Si, 700.^ 

Cassoday,  J.  We  are  forced  to  the  conclusion  that  at  the  time 
the  plaintiffs  applied  for  the  cars  the  defendant  was  engaged  in  the 
business  of  transporting  live  stock  over  its  roads,  including  tlie  line  in 
question,  and  that  it  was  accustomed  to  furnish  suitable  cars  therefor, 
upon  reasonable  notice,  whenever  it  was  within  its  power  to  do  so ; 
and  that  it  held  itself  out  to  the  public  generally  as  sncli  carrier  for  hire 
upon  such  terms  and  conditions  as  were  prescribed  in  the  written  con- 
tracts mentioned.  These  things,  in  our  judgment,  made  the  defendant 
a  common  carrier  of  live  stock,  with  such  restrictions  and  limitations  of 
its  common-law  duties  and  liabilities  as  arose  from  the  instincts,  habits, 
propensities,  wants,  necessities,  vices,  or  locomotion  of  such  animals, 
under  the  contracts  of  carriage.  This  proposition  is  fairly  dedncible 
from  what  was  said  in  Richardson  v.  C.  &  N.  W.  R.  Co.,  61  Wis.  601, 
and  is  supported  by  the  logic  of  numerous  cases.  North  Penn.  R.  Co. 
V.  Commercial  Bank,  123  U.  S.  727  ;  Moulton  v.  St.  P.,  M.  &  M.  R.  Co., 
31  Minn.  85,  12  Am.  &  Eng.  R.  Cas.  13  ;  Lindsley  v.  C,  M.  &  St.  P. 
R.  Co.,  36  Minn.  539  ;  Evans  v.  F.  R.  Co.,  Ill  Mass.  142  ;  Kimball  >-. 
R.  &  B.  R.  Co.,  26  Vt.  247,  62  Am.  Dec.  567  ;  Rixford  ».  Smith,  52 
N.  H.  355  ;  Clarke  v.  R.  &  S.  R.  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205  ; 
Soutli  &  N.  A.  R.  Co.  V.  Henlein,  52  Ala.  606  ;  Baker  v.  L.  &  N.  R. 
Co.,  10  Lea,  304,  16  Am.  &  Eng.  R.  Cas.  149  ;  Philadelphia  W.  &  B. 
R.  Co.  V.  Lehman,  56  Md.  209  ;  McFadden  v.  M.  P.  R.  Co.,  92  Mo. 
343  ;  3  Am.  &  Eng.  Cyclop.  Law,  pp.  1-10,  and  cases  there  cited. 
This  is  in  harmony  with  the  statement  of  Parke,  B.,  in  the  case  cited 
by  counsel  for  the  defendant,  that  "  at  common  law  a  carrier  is  not 
bound  to  carr}-  for  every  person  tendering  goods  of  any  description, 
but  his  obligation  is  to  carry  according  to  his  public  profession." 
Johnson  v.  Midland  R.  Co.,  4  Exch.  372.  Being  a  common  carrier  of 
live  stock  for  hire,  with  the  restrictions  and  limitations  named,  and 
holding  itself  out  to  the  public  as  such,  the  defendant  is  bound  to  fur- 
nish suitable  cars  for  such  stock,  upon  reasonable  notice,  whenever  it 
can  do  so  with  reasonable  diligence  without  jeopardizing  its  other  busi- 
ness as  such  common  carrier.  Texas  «fe  P.  R.  Co.  v.  Nicholson,  61 
Tex.  491  ;  Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613;  Ballentine  r. 
N.  M.  R.  Co  ,  40  Mo.  491  ;  Guinn  v.  W.,  St.  L.  &  P.  R.  Co.,  20  Mo. 
A  pp.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish  upon  the 
notice  given,  was  necessarily  a  question  of  fact  to  be  determined.  The 
plaintiffs,  as  such  shippers,  had  the  right  to  command  the  defendant  to 
furnish  su(!h  cars.  But  they  had  no  right  to  insist  upon  or  expect  com- 
pliance, except  upon  giving  reasonable  notice  of  the  time  when  they 
would  be  required.  To  be  reasonable,  such  notice  must  have  been  suf- 
1  The  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Ed. 


118  AYKES   V.   CHICAGO   &   NOKTHWESTEKN   KAILWAY. 

ficient  to  enable  the  defendant,  with  reasonable  diligence  under  the  cir- 
cumstances then  existing,  to  furnish  the  cars  without  interfering  with 
previous  orders  from  other  shippers  at  the  same  station,  or  jeopardizing 
its  business  on  other  portions  of  its  road.  It  must  be  I'emembered  that 
the  defendant  has  many  lines  of  railroad  scattered  through  several  dif- 
ferent States.  Along  each  and  all  of  these  ditierent  lines  it  has  stations 
of  more  or  less  importance.  The  company  owes  the  same  dut}'  to 
sliippers  at  an\'  one  station  as  it  does  to  the  shippers  at  an}-  other 
station  of  the  same  business  importance.  The  rights  of  all  shippers 
applying  for  such  cars  under  the  same  circumstances  are  necessarily 
equal.  No  one  station,  much  less  any  one  shipper,  has  the  right  to 
command  the  entire  resources  of  the  company  to  the  exclusion  or  pre- 
judice of  other  stations  and  other  shippers.  Most  of  such  suitable  cars 
must  necessarily  be  scattered  along  and  upon  such  different  lines  of 
railroad,  loaded  or  unloaded.  Man}^  will  necessarih'  be  at  the  larger 
centers  of  trade.  The  conditions  of  the  market  are  not  alwaj^s  the 
same,  but  are  lialjle  to  fluctuations,  and  may  be  such  as  to  create  a 
great  demand  for  such  cars  upon  one  or  more  of  such  lines,  and  ver^' 
little  upon  others.  Such  cars  should  be  distributed  along  the  different 
lines  of  load,  and  the  several  stations  on  each,  as  near  as  ma}-  be  in 
proportion  to  the  ordinary  business  requirements  at  the  time,  in  order 
that  shipments  may  be  made  with  reasonable  celerit}'.  The  require- 
ment of  such  fair  and  general  distribution  and  uniform  vigilance  is  not 
only  mutually  beneficial  to  producers,  shippers,  carriers,  and  purchasers, 
but  of  business  and  trade  generally.  It  is  the  extent  of  such  business 
ordinaril}'  done  on  a  particular  line,  or  at  a  particular  station,  which 
properly  measures  the  carrier's  obligation  to  furnish  such  transporta- 
tion. But  it  is  not  the  duty  of  such  carrier  to  discriminate  in  favor  of 
the  business  of  one  station  to  the  prejudice  and  injury  of  the  business 
of  another  station  of  the  same  importance.  These  views  are  in  harmony 
witli  the  adjudications  last  cited. 

The  important  question  is  whether  the  burden  was  upon  the  plaintiffs 
to  prove  tliat  the  defendant  might,  with  such  reasonable  diligence  and 
without  thus  jeopardizing  its  otlier  business,  have  furnished  such  cars 
at  the  time  ordered  and  upon  the  notice  given  ;  or  whether  such  burden 
was  upon  the  defendant  to  prove  its  inability  to  do  so.  We  find  no 
direct  adjudication  upon  tlie  question.  Ordinaril}',  a  plaintiff  alleging 
a  fact  has  tlie  burden  of  proving  it.  This  rule  has  been  applied  by  this 
court,  even  where  the  complaint  alleges  a  negative,  if  it  is  susceptible 
of  proof  b}'  the  plaintiff.  Hepler  v.  State,  58  Wis.  46.  But  it  has  been 
lield  otherwise  wiiere  the  only  proof  is  peculiarly  within  the  control  of 
the  defendant.  Mecklem  v.  Blake,  16  Wis.  102;  Beckmann  v.  Henn, 
17  Wis.  412;  Noonan /'.  Ilsley,  21  Wis.  144;  Great  Western  R.  Co. 
V.  Bacon,  30  111.  352  ;  Brown  v.  Brown,  30  La.  Ann.  511.  Here  it  may 
have  been  possible  for  the  plaintiffs  to  have  proved  that  there  were  at 
the  times  and  stations  named,  or  in  the  vicinity,  empty  cars,  or  cars 
which  had  reached  their  destination  and  might  have  been  emptied  with 


STATE   V.   CINCINNATI,   NEW   ORLEANS   &   TEX.    PAC.    R.         119 

reasonable  diligence,  but  they  could  not  know  or  prove,  except  by 
agents  of  the  defendant,  that  any  of  such  cars  were  not  subject  to  prior 
orders  or  superior  obligations.  The  ability  of  the  defendant  to  so  fur- 
nish with  ordinary  diligence  upon  the  notice  given,  upon  tlie  principles 
stated  was,  as  we  think,  peculiarly  within  the  knowledge  of  the  defend- 
ant and  its  agents,  and  hence  the  burden  was  upon  it  to  prove  its  in- 
ability to  do  so.  Where  a  sliii)per  applies  to  the  proper  agency  of  a 
railroad  company  engaged  in  the  business  of  such  common  carrier  of 
live  stock  for  sucli  cars  to  be  furnished  at  a  time  and  station  named, 
it  becomes  the  duty  of  the  company  to  inform  the  sliipper  within  a 
reasonable  time,  if  practicable,  whether  it  is  unable  to  so  furnish,  and 
if  it  fails  to  give  such  notice,  and  has  induced  the  shipper  to  believe 
that  the  cars  will  be  in  readiness  at  the  time  and  place  named,  and  the 
shipper,  relying  upon  such  conduct  of  the  carrier,  is  present  with  liis 
live  stock  at  the  time  and  place  named,  and  finds  no  cars,  there  would 
seem  to  be  no  good  reason  why  the  company  should  not  respond  in 
damages.  Of  course  these  observations  do  not  involve  the  question 
whether  a  railroad  company  may  not  refrain  from  engaging  in  such 
business  as  a  common  carrier ;  nor  whether,  having  so  engaged,  it  may 
not  discontinue  tlie  same. 

The  court  very  properly  charged  the  jury,  in  effect,  that  if  all  the 
cars  had  been  furnished  on  time,  as  the  two  were,  it  was  reasonable  to 
presume,  in  the  absence  of  any  proof  of  actionable  negligence  on  the 
part  of  the  defendant,  that  they  would  have  reached  Chicago  at  the 
same  time  the  two  did  —  to  wit,  Thursda}',  October  19,  1882,  a.  m., 
whereas  they  did  not  arrive  until  Friday  evening.  This  was  in  time, 
however,  for  the  market  in  Chicago  on  Saturday,  October  21,  1882. 
This  necessaril}-  limited  the  recovery  to  the  expense  of  keeping,  the 
shrinkage,  and  depreciation  in  value  from  Thursday  until  Saturday. 
Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613.  The  trial  court,  how- 
ever, refused  to  so  limit  the  recover}',  but  left  the  jur}'  at  liberty  to  in- 
clude such  damages  down  to  Monday,  October  23,  1882.  For  this 
manifest  errror,  and  because  there  seems  to  have  been  a  mistrial  in 
some  other  respects,  the  judgment  of  the  ci/cuit  court  is  reversed,  and 
the  cause  is  remanded  for  a  new  trial. 

By  the  Court.  —  Ordered  accordingl}'. 


STATE  V.    CINCINNATI,    NEW  ORLEANS   &   TEXAS 
PACIFIC   RAILWAY. 

Supreme  Court  op  Ohio,  1890. 

[47  Ohio  St.  130:  23  N.  E.  928.] 

Bradbury,  J.^     These  actions  are  brought  under  the  fourth  clause 
of  section  6761,  Rev.  St.,  which  authorizes  an  action  of  quo  warranto 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


120  STATE    V.    CINCINNATI,   NEW   OELEANS   &   TEX.   PAC.    K. 

to  be  brought  against  a  corporation  when  it  has  misused  a  franchise, 
privilege,  or  right  conferred  upon  it  by  law,  or  when  it  claims  or 
holds,  by  contract  or  otherwise,  or  has  exercised  a  franchise,  privi- 
lege, or  right,  in  contravention  of  law.  The  petitions  charge,  among 
other  things,  that  the  defendants  misused  their  corporate  powers  and 
franchises  b}'  discriminating  in  their  rates  of  freight  in  favor  of  cer- 
tain refiners  of  petroleum  oil  connected  with  the  Standard  Oil  Com- 
pany, by  charging  other  shippers  of  like  products  unreasonable  rates, 
by  arbitrarily  and  suddenly  changing  the  same,  and,  finally,  by 
confederating  with  the  favored  shippers  to  create  and  foster  a  mon- 
opoly in  refined  oil,  to  the  injury  of  other  refiners  and  the  public; 
and,  further,  that  the  defendants  claimed  and  exercised,  in  contra- 
vention of  law,  the  right  to  charge,  for  shipping  oil  in  tank-cars,  a 
lower  rate  of  freight  per  100  pounds  than  they  charged  for  shipping 
the  same  in  barrels,  in  car-load  lots.  The  defendants,  by  answer, 
among  other  matters,  denied  charging  any  shippers  unreasonable 
rates  of  freight,  or  that  the}'  arbitrarily  or  suddenly  changed  such 
rates,  and  denied  any  confederacy  with  any  one  to  establish  a  mon- 
opoly. The  actions  were  referred  to  a  referee,  to  take  the  evidence, 
and  to  report  to  this  court  his  findings  of  fact  and  conclusions  of 
law  therefrom,  —  all  which  has  been  done;  and  the  cases  are  before 
us  upon  this  report.   .   .   . 

That  the  Cincinnati,  Washington  &  Baltimore  Railway  Company 
did  discriminate  in  its  rates  for  freight  on  petroleum  oil  in  favor 
of  the  Camden  Consolidated  Oil  Company,  and  that  the  Cincin- 
nati, New  Orleans  &  Texas  Pacific  Railway  Company  did  the 
same  in  favor  of  the  Chess-Carly  Company,  is  shown  by  the  find- 
ing of  the  referee,  which  is  clearly  sustained  by  the  evidence.  That 
these  discriminating  rates  were  in  some  instances  strikingly  exces- 
sive, tended  to  foster  a  monopoly,  tended  to  injure  the  competitors 
of  the  favored  shippers,  and  were  in  many  instances  prohibitory, 
actually  excluding  these  competitors  from  extensive  and  valuable 
markets  for  their  oil,  giving  to  the  favored  shippers  absolute  control 
thereof,  is  established  beyond  any  serious  controversy.  The  justi- 
fication interposed  is  that  this  was  not  done  pursuant  to  any  con- 
federacy with  the  favored  shipper,  or  with  any  purpose  to  inflict 
injury  on  their  competitors,  but  in  order  that  the  railroad  companies 
might  secure  freight  that  would  otherwise  have  been  lost  to  them. 
This  we  do  not  think  sufficient.  We  are  not  unmindful  of  the  diffi- 
culties that  stand  in  the  way  of  prescribing  a  line  of  duty  to  a  rail- 
way company,  nor  do  we  undertake  to  say  they  may  not  pursue  their 
legitimate  objects,  and  shape  their  policy  to  secure  benefits  to  them- 
selves, though  it  may  press  severely  upon  the  interests  of  others ;  but 
we  do  hold  that  they  cannot  be  permitted  to  foster  or  create  a  mon- 
opoly, by  giving  to  a  favored  shipper  a  discriminating  rate  of  freight. 
As  common  carriers,  their  duty  is  to  carry  indifferently  for  all  who 
may  apply,  and  in  the  order  in  which  the  application  is  made,  and 


STATE    V.    CINCINNATI,    NEW    OELEANS   &   TEX.    PAC.    R.         121 

upon  the  same  terms ;  and  the  assumption  of  ti  right  to  make  discrim- 
inations in  rates  for  freight,  such  as  was  claimed  and  exercised  by 
the  defendants  in  this  case,  on  the  ground  that  it  thereby  secured 
freight  that  it  would  otherwise  lose,  is  a  misuse  of  the  rights  and 
privileges  conferred  upon  it  by  law.  A  full  and  complete  discussion 
of  the  principles,  and  a  thorough  collation  of  the  authorities,  bearing 
upon  the  duties  of  railroad  companies  towards  their  customers,  is  to 
be  found  in  the  opinion  of  Judge  Atherton,  in  the  case  of  Scolield  o. 
Railway  Co.,  43  Ohio  St.  571,  to  which  nothing  need  be  now  added. 

It  appears  that,  of  the  two  methods  of  shipping  oil,  —  that  by  the 
barrel,  in  car-load  lots,  and  that  in  tank-cars,  —  the  first  only  was 
available  to  George  Rice,  and  the  other  refiners  of  petroleum  oil  at 
Marietta,  Ohio,  as  they  owned  no  tank-cars,  nor  did  the  defendants 
own  or  undertake  to  provide  any ;  but  that  both  methods  were  open 
to  the  Camden  Consolidated  Oil  Company  and  the  Chess-Carly  Com- 
pany, by  reason  of  their  ownership  of  tank-cars,  and  that  the  rate  per 
barrel  in  tank-cars  was  very  much  lower  than  in  barrel  packages,  in 
box-cars;  that  in  fact  the  Cincinnati,  Washington  &  Baltimore  Rail- 
way Company,  after  allowing  the  Camden  Consolidated  Oil  Company 
a  rebate,  and  allowing  the  Baltimore  &  Ohio  Railway  Company  for 
switching  cars,  received  from  the  Camden  Consolidated  Oil  Company 
only  about  one-half  the  open  rates  it  charged  the  Marietta  refiners, 
and  that  both  railroad  companies  claimed  the  right  to  make  different 
rates,  based  upon  the  different  methods  of  shipping  oil,  and  the  fact 
of  the  ownership  by  shippers  of  the. tank-cars  used  by  them.  It  was 
the  duty  of  the  defendants  to  furnish  suitable  vehicles  for  transport- 
ing freight  offered  to  them  for  that  purpose,  and  to  offer  equal  terms 
to  all  shippers.  A  railroad  is  an  improved  highway.  The  public 
are  equally  entitled  to  its  use.  It  must  provide  equal  accommodation 
for  all,  upon  the  same  terms.  The  fact  that  one  shipper  may  be  jn'O- 
vided  with  vehicles  of  his  own  entitles  him  to  no  advantage  over  his 
competitor  not  so  provided.  The  true  rule  is  announced  by  the  inter- 
state commerce  commission  in  the  report  of  the  case  of  Rice  i\ 
Railroad  Co.  "  The  fact  that  the  owner  supplies  the  rolling  stock 
when  his  oil  is  shipped  in  tanks,  in  our  opinion,  is  entitled  to  little 
weight,  when  rates  are  under  consideration.  It  is  properly  the  busi- 
ness of  railroad  companies  to  supply  to  their  customers  suitable, 
vehicles  of  transportation  (Railroad  Co.  v.  Pratt,  22  Wall.  123)  and 
then  to  offer  their  use  to  everybody,  impartially."  1  Int.  St.  Com.  R. 
547.  No  doubt,  a  shipper  who  owns  cars  may  be  paid  a  reasonable 
compensation  for  their  use,  so  that  the  compensation  is  not  made  a 
cover  for  discriminating  rates,  or  other  advantages  to  such  owner  as 
a  shipper.  Nor  is  there  any  valid  objection  to  such  owner  using 
them  exclusively,  as  long  as  the  carrier  provides  equal  accommoda- 
tions to  its  other  customers.  It  may  be  claimed  that  if  a  railroad 
company  permit  all  shippers,  indifferently  and  upon  equal  terms,  to 
provide  cars  suitable  for  their  business,  and  to  use  them  exclusively, 


122  JEXCKS   V.   COLEMAN. 

no  discrimination  is  made.  This  may  be  theoretically  true,  but  is 
not  so  in  its  application  to  the  actual  state  of  the  business  of  the 
countr}';  for  a  very  large  proportion  of  the  customers  of  a  railroad 
have  not  a  volume  of  business  large  enough  to  warrant  equipping 
themselves  with  cars,  and  might  be  put  at  a  ruinous  disadvantage  in 
the  attempt  to  compete  with  more  extensive  establishments.  Aside 
from  this,  however,  a  shipper  is  not  bound  to  provide  a  car.  The 
duty  of  providing  suitable  facilities  for  its  customers  rests  upon  the 
railroad  company;  and  if,  instead  of  providing  sufficient  and  suit- 
able cars  itself,  this  is  done  by  certain  of  its  customers,  even  for  their 
own  convenience,  yet  the  cars  thus  provided  are  to  be  regarded  as 
part  of  the  equipment  of  the  road.  It  being  the  duty  of  a  railroad 
company  to  transport  freight  for  all  persons,  indifferently,  and  in 
the  order  in  which  its  transportation  is  applied  for,  it  cannot  be 
permitted  to  suffer  freight-cars  to  be  placed  upon  its  track  by  any 
customer  for  his  private  use,  except  upon  the  condition  that,  if  it 
does  not  provide  other  cars  sufficient  to  transport  the  freight  of  other 
customers  in  the  order  that  application  is  made,  they  may  be  used 
for  that  purpose.  Were  this  not  so,  a  mode  of  discrimination  fatal 
to  all  successful  competition  by  small  establishments  and  operators 
with  larger  and  more  opulent  ones  could  be  successfully  adopted  and 
practiced  at  the  will  of  the  railroad  company,  and  the  favored 
shipper. 

The  advantages,  if  any,  to  the  carrier,  presented  by  the  tank-car 
method  of  transporting  oil  over,  that  by  barrels,  in  box-cars,  in  car- 
load lots,  are  not  sufficient  to  justify  any  substantial  difference  in 
the  rate  of  freight  for  oil  transported  in  that  waj';  but  if  there  were 
any  such  advantages,  as  it  is  the  duty  of  the  carrier  to  furnish  proper 
vehicles  for  transporting  it,  if  it  failed  in  this  duty,  it  could  not,  in 
justice,  avail  itself  of  its  own  neglect  as  a  ground  of  discrimination. 
It  must  either  provide  tank-cars  for  all  of  its  customers  alike,  or  give 
such  rates  of  freight  in  barrel  packages,  by  the  car-load,  as  will 
place  its  customers  using  that  method  on  an  equal  footing  with  its 
customers  adopting  the  other  method.  Judgment  ousting  defendants 
from  the  right  to  make  or  charge  a  rate  of  freight  per  100  pounds  for 
transporting  oil  in  iron  tank-cars,  substantially  lower  than  for  trans- 
porting it  in  barrels,  in  car-load  lots. 


JENCKS  V.  COLEMAN. 
Circuit  Court  of  the  United  States,  1835. 

[2  Sum.  221.] 

Case  for  refusing  to  take  the  plaintiff  on  board  of  the  steamboat 
Benjamm  FranJcJin  (of  which  the  defendant  was  commander),  as  a 
passenger  from  Providence  to  Newport.     Plea,  the  general  issue. 


JENCKS   V.   COLEMAN.  123 

The  facts,  as  the}'  appeared  at  the  trial,  were  substantially  as  follow  : 
That  the  plaintiff  was  the  agent  of  the  Tremont  line  of  stages,  running 
between  Providence  and  Boston  ;  that  his  ol)ject  was  to  take  passage 
in  the  boat  to  Newport,  and  then  go  on  board  the  steamboat  rresident, 
on  her  passage  from  New  York  to  Providence,  on  the  next  morning, 
for  the  purpose  of  soliciting  passengers  for  the  Tremont  line  of  stages 
for  Boston.  This  the  proprietors  of  the  President  and  Benjamin  Frank- 
lin had  proliibited,  and  had  given  notice  that  tliey  would  not  permit 
agents  of  that  line  of  stages  to  take  [)assage  in  their  boats  for  that 
purpose.  Tlie  reason  assigned  for  such  prohibition  was,  that  it  was 
important  for  the  proprietors  of  the  steamboats,  that  the  passengers 
from  their  boats,  for  Boston,  should  find,  at  all  times,  on  tlieir  arrival 
at  Providence,  an  immediate  and  expeditious  passage  to  Boston.  To 
insure  tins  object,  the  Citizens'  Coach  Company  iiad  contracted  with 
the  steamboat  proprietors  to  carry  all  the  passengers,  who  wislted  to 
go,  in  good  carriages,  at  reasonable  expedition  and  prices  ;  and  the 
commanders  of  the  steamboats  were  to  receive  the  fare,  and  make  out 
way-bills  of  tlie  passengers,  for  the  Citizens'  Coach  Company.  This 
they  continued  to  perform.  And,  in  order  to  counteract  the  effect  of 
this  contract,  —  which  had  been  offered  the  Tremont  line,  and  de- 
clined,—  that  line  placed  an  agent  on  board  the  boats,  to  solicit 
passeng(*rs  for  their  coaches ;  and,  on  being  complained  to  by  the 
Citizens'  Coach  Company,  the  proprietors  of  the  steamboats  interdicted 
such  agents  from  coming  on  board  their  boats,  and  in  this  instance, 
refused  to  permit  the  plaintiif  to  take  passage  in  the  boat  for  Newport, 
though  lie  tendered  the  customary  fare. 

The  cause  was  argued  by  R.  W.  G/'eetie  and  Daniel  Webster  for  the 
plaintiff,  and  b}'  Hirers  and  Whipple  for  the  defendants. 

For  the  plaintiff  it  was  contended,  that  steamboat  proprietors  were 
common-carriers, —  and  ever^'  person,  conducting  himself  with  propriet}', 
had  a  right  to  be  carried,  unless  he  had  forfeited  that  right. 

The  plaintiff  in  this  instance  did  conduct  with  propriety,  and  had  not 
forfeited  liis  right  to  be  carried  by  any  improper  misconduct. 

The  steamboat  proprietors  and  Citizens'  Coach  Company  had  at- 
tempted to  establish  a  monopoly,  which  should  not  be  countenanced,  it 
being  against  the  public  interest.  Such  a  monopoly  operated  to  increase 
the  price  and  prolong  the  time  of  passage  from  Providence  to  Boston  ; 
while  open  comi)etition  promoted  the  public  interest  and  convenience, 
by  reducing  tlie  fare  and  ex[)edlting  the  passage. 

Tlie  plaintiff,  in  this  instance,  requested  to  be  conveyed  from  Provi- 
dence to  Newport ;  during  which  passage,  it  was  well  known,  no  pas- 
sengers were  to  be  solicited,  — that  was  to  be  done  only  on  the  passage 
from  Newport  to  Providence. 

For  the  defendant,  it  was  contended,  that  the  contract  made  by  the 
steamboat  proprietors  and  the  Citizens'  Company,  was  legal,  and  sub- 
served the  public  convenience,  and  the  interest  of  the  proprietors  of  the 
boats  and  stages ;   it  insured  to  the  passengers  expeditious  passages 


124  JENCKS   V.   COLEMAN. 

at  reasonable  prices ;  that  the  regulation,  excluding  the  agents  of  the 
Tremont  line  of  stages  from  the  steamboats,  was  legal  and  just,  because 
it  was  necessary  to  promote  tiie  foregoing  objects,  to  wit:  the  public 
convenience,  and  the  interests  of  the  proprietors  of  both  the  boats  and 
stages.  Of  this  interdiction  the  plaintiff  had  received  notice,  and  had 
no  legal  right  to  complain. 

Story,  J.,  in  summing  up  to  the  jury,  after  recapitulating  the  evi- 
dence, said  :  There  is  no  doubt,  that  this  steamboat  is  a  common  carrier 
of  passengers  for  hire ;  and,  therefore,  the  defendant,  as  commander, 
was  bound  to  take  the  plaintiff  as  a  passenger  on  board,  if  he  had  suit- 
able accommodations,  and  thei'e  was  no  reasonable  objection  to  the 
character  or  conduct  of  the  plaintiff.  The  question,  then,  really  resolves 
■  itself  into  tlie  mere  consideration,  whether  there  was,  in  the  present 
case,  upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
riglit,  but  it  is  subject  to  such  reasonable  regulations  as  the  propri- 
etors may  prescribe,  for  the  due  accommodation  of  passengers  and  for 
the  due  arrangements  of  their  business.  The  proprietors  have  not  only 
this  right,  but  the  farther  right  to  consult  and  provide  for  their  own  in- 
terests in  the  management  of  such  boats,  as  a  common  incident  to  their 
right  of  propertj".  They  are  not  bound  to  admit  passengers  on  board 
who  refuse  to  obe^'  the  reasonable  regulations  of  the  boat,  or  who  are 
guilty  of  gross  and  vulgar  habits  of  conduct ;  or  who  make  disturbances 
on  board  ;  or  whose  characters  are  doubtful  or  dissolute  or  suspicious  ; 
and,  a^/br^*oW,  whose  characters  are  unequivocally  bad.  Nor  are  the^' 
bound  to  admit  passengers  on  board  whose  object  it  is  to  interfere 
with  the  interests  or  patrouage  of  the  proprietors,  so  as  to  make  the 
business  less  lucrative  to  them. 

While,  therefore,  I  agree  that  steamboat  proprietors,  holding  them- 
selves out  as  common  carriers,  are  bound  to  receive  passengers  on 
board  under  ordinary  circumstances,  I  at  the  same  time  insist  that 
the}'  may  refuse  to  receive  them  if  there  be  a  reasonable  objection. 
And  as  passengers  are  bound  to  obe}'  the  orders  and  regulations  of  the 
proprietors,  unless  they  are  oppressive  and  grossly  unreasonable,  who- 
ever goes  on  board,  under  ordinarj'  circumstances,  impliedh'  contracts 
to  obey  such  regulations  ;  and  may  justly  be  refused  a  passage,  if  he 
wilfull}'  resists  or  violates  them. 

Now,  what  are  the  circumstances  of  the  present  case?  Jencks  (the 
plaintiff)  was,  at  the  time,  the  known  agent  of  the  Tremont  line  of 
stage  coaches.  The  proprietors  of  the  Benjamin  Franklin  had,  as  he 
well  knew,  entered  into  a  contract  with  the  owners  of  another  line  (the 
Citizens'  Stage  Coach  Company)  to  bring  passengers  from  Boston  to 
Providence,  and  to  carr}'  passengers  from  Providence  to  Boston,  in 
connection  with  and  to  meet  the  steamboats  plying  between  New  York 
and  Providence,  and  belonging  to  the  proprietors  of  the  Franklin. 
Such  a  contract  was  important,  if  not  indispensable,  to  secure  uni- 
formity, punctualit}',  and  certainty  in  the   carriage  of  passengers  on 


JENCKS   V.   COLEMAN.  125 

both  routes  ;  and  might  be  material  to  the  interests  of  the  proprietors 
of  those  steamboats.  Jencks  had  been  in  the  habit  of  coming  on  board 
tliese  steamboats  at  Providence,  and  going  therein  to  Newport ;  and 
common)}'  of  coming  on  board  at  Newport,  and  going  to  Providence, 
avowedly  for  the  purpose  of  sobciting  passengers  for  tlie  Treniont  line, 
and  thus  interfering  with  the  patronage  intended  to  be  secured  to  the 
Citizens'  line  by  tlie  arrangements  made  with  the  steamboat  proprietors- 
He  had  tlie  fullest  notice  that  the  steamboat  proprietors  had  forbidden 
any  person  to  come  on  board  for  such  purposes,  as  incompatible  with 
tlieir  interests.  At  the  time  when  he  came  on  board,  as  in  the  decla- 
ration mentioned,  there  was  ever}-  reason  to  presume  that  he  was  on 
board  for  his  ordinary  purposes  as  agent.  It  has  been  said  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives.  I  cannot 
admit  that  point.  I  think  that  the  proprietors  had  a  riglit  to  inquire 
into  such  intent  and  motives  ;  and  to  act  upon  the  reasonable  presump- 
tions which  arose  in  regard  to  them.  Suppose  a  known  or  suspected 
thief  were  to  come  on  board  ;  would  they  not  have  a  right  to  refuse 
him  a  passage?  Miglit  tliey  not  justly  act  upon  the  presumption  that 
his  object  was  unlawful?  Suppose  a  person  were  to  come  on  board, 
who  was  habitually  drunk,  and  gross  in  his  behavior,  and  obscene  in 
his  language,  so  as  to  be  a  public  annoyance  ;  might  not  the  proprietors 
refuse  to  allow  him  a  passage?  I  think  they  might,  upon  the  just 
presumption  of  what  his  conduct  would  be. 

It  has  been  said  b}*  the  learned  counsel  for  the  plauitiff,  that  Jencks 
was  going  from  Providence  to  Newport,  and  not  coming  back;  and 
that  in  going  down,  there  would,  from  the  very  nature  of  the  object, 
be  no  solicitation  of  passengers.  That  does  not  necessarily  follow  ; 
for  he  might  be  engaged  in  making  preliminary  engagements  for  the 
return  of  some  of  them  back  again.  But,  supposing  there  were  no 
sucli  solicitations,  actual  or  intended,  I  do  not  think  the  case  is  essen- 
tially changed.  I  think  that  tlie  proprietors  of  the  steamboats  were 
not  bound  to  take  a  passenger  from  Providence  to  Newport,  whose  ob- 
ject was,  as  a  stationed  agent  of  the  Treraont  line,  thereby  to  acquire 
facilities  to  enable  him  successfully  to  interfere  with  the  interests  of 
these  proprietors,  or  to  do  them  an  injury  in  tlieir  business.  Let  us  take 
the  case  of  a  ferryman.  Is  he  bound  to  carry  a  passenger  across  a  ferry, 
whose  object  it  is  to  commit  a  trespass  upon  his  lands?  A  case  still 
more  strongly  in  point,  and  which,  in  my  judgment,  completely  meets 
the  present,  is  that  of  an  innkeeper.  Suppose  passengers  are  accus- 
tomed to  breakfast,  or  dine,  oi-  sup  at  his  house  ;  and  an  agent  is  em- 
ployed by  a  rival  house,  at  the  distance  of  a  few  miles,  to  decov  the 
passengers  away  the  moment  they  arrive  at  the  inn  ;  is  the  innkeeper 
bound  to  entertain  and  lodge  such  agent,  and  thereby  enable  him  to 
accomplish  the  very  olijects  of  his  mission,  to  the  injury  or  ruin  of 
his  own  interests?     I  think  not. 

It  has  been  also  said,  that  the  steamboat  pro]U'ietors  are  bound  to 
carry  passengers  only  between  Pi'ovidence  and  New  York,  and  not  to 


126  JENCKS   V.    COLEMAN". 

transport  them  to  Boston.  Be  it  so,  that  the}'  are  not  absohitely  bound. 
Yet  thej'  have  a  right  to  make  a  contract  for  this  latter  purpose,  if  they 
choose  ;  and  especial!}'  if  it  will  facilitate  the  transportation  of  passen- 
gers, and  increase  the  patronage  of  their  steamboats.  J  do  not  say 
that  they  have  a  right  to  act  oppressively  in  such  cases.  But  certainly 
they  may  in  good  faith  make  such  contracts,  to  promote  their  own,  as 
well  as  the  public  interests. 

The  only  real  question,  tiien,  in  the  present  case  is,  whether  the  con- 
duct of  the  steamboat  proprietors  has  been  reasonable  and  bona  Jide. 
The}'  have  entered  into  a  contract  with  the  Citizens'  line  of  coaches 
to  carry  all  their  passengers  to  and  from  Boston.  Is  tliis  contract 
reasonable  in  itself;  and  not  designed  to  create  an  oppressive  and  mis- 
chievous monopoly?  There  is  no  pretence  to  say  that  any  passenger 
in  the  steamboat  is  bound  to  go  to  or  from  Boston  in  the  Citizens'  line. 
He  may  act  as  he  pleases.  It  has  been  said  by  the  learned  counsel  for 
the  plaintiff,  that  free  competition  is  best  for  the  public.  But  that  is 
not  the  question  here.  Men  may  reasonably  differ  from  each  other  on 
that  point.  Neither  is  the  question  here,  whether  the  contract  with  the 
Citizens'  line  was  indispensable,  or  absolutely  necessary,  in  order  to 
ensure  the  carriage  of  the  passengers  to  and  from  Boston.  But  the 
true  question  is,  whether  the  contract  is  reasonable  and  proper  in  itself, 
and  entered  into  with  good  faith,  and  not  for  the  purpose  of  an  oppres- 
sive monopoly.  If  the  jury  find  the  contract  to  be  reasonable  and  proper 
in  itself  and  not  oppressive,  and  they  believe  the  purpose  of  Jencks  in 
going  on  board  was  to  accomplish  the  objects  of  his  agency,  and  in 
violation  of  the  reasonable  regulations  of  the  steamboat  proprietors, 
then  their  verdict  ought  to  be  for  the  defendant ;  otherwise,  to  be  for 
the  plaintiff. 

Webster,  for  the  plaintiff,  then  requested  the  Court  to  charge :  That 
the  jury  must  be  satisfied  that  this  agreement  was  necessary  or  clearly 
expedient  for  the  public  interest,  and  the  interest  of  the  proprietors  of 
the  boats,  or  otherwise  the  captain  of  the  boat  could  not  enforce  it,  by 
refusing  the  plaintiff  a  passage  ;  Or,  that  the  defendant  must  show  that 
the  substantial  interest  of  the  proprietors,  or  of  the  public,  required  an 
arrangement,  such  as  they  had  entered  into,  In  order  to  j.ustify  their 
refusal  to  carry  the  plaintiff  for  the  cause  assigned. 

The  Court  refused  to  give  instruction  in  the  manner  and  form  as 
prayed  ;  but  did  instruct  the  jury,  that  it  is  not  necessary  for  the  de- 
fendant to  prove,  that  the  contract  in  the  case  was  necessary  to  accom- 
plish the  objects  therein  stated  ;  but  it  is  sufficient,  if  it  was  entered 
into  by  the  steamboat  proprietors  bona  fide  and  purely  for  the  purpose 
of  their  own  interest,  and  the  accommodation  of  the  public,  from  their 
belief  of  its  necessity,  or  its  utility.  If  the  jury  should  be  of  opinion 
that,  under  all  the  circumstances  of  the  case,  it  was  a  reasonable  con- 
tract, and  the  exclusion  of  the  plaintiff  was  a  I'easonable  and  proper 
regulation  to  carry  it  into  effect  on  the  part  of  the  steamboat  propri- 
etors, then  their  verdict  ouglit  to  be  in  favor  of  the  defendant;  other- 
wise, in  favor  of  the  plaintiff.  Yerdictfor  defendant. 


BENNETT   V.   BUTTON.  127 

BENNETT   v.   BUTTON. 
Supreme  Court  of  New  Hampshire,  1839. 

[10  N.  II.  481.] 

Case.  The  declaration  alleged  that  the  defendant  was  part  owner, 
and  driver,  of  a  public  stage  coach,  from  Nashua  to  Amherst  and 
Francestown  —  that  on  the  31st  January,  1837,  the  plaintiff  a[)plied  to 
him  to  be  received  into  hfs  coach,  at  Nashua,  and  conveyed  from  thence 
to  Amherst,  offering  to  pay  the  customary  fare  ;  and  that  the  defend- 
ant, although  there  was  room  in  his  coach,  refused  to  receive  the 
plaintiff. 

It  appeared  in  evidence  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages,  running  between  Lowell,  in 
Massachusetts,  and  Nashua  —  that  Jonathan  15.  French  was  the  pro- 
prietor of  one  of  these  lines,  and  Nelson  Tuttle  of  the  other  —  that 
Tuttle's  line  ran  no  farther  than  from  Lowell  to  Nashua  —  that  French 
and  the  proprietors  of  the  defendant's  line  were  interested  in  a  contract 
for  carrying  the  United  States  mail  from  Lowell  to  Francestown,  through 
Amherst  (dividing  the  mail  mone}'  in  proportion  to  the  length  of  their 
respective  routes),  so  as  to  form  one  continuous  mail  route  from  Lowell 
to  Francestown  —  that  French  and  the  proprietors  of  the  defendant's 
line  had  agreed  to  run  their  respective  coaches  so  as  to  form  a  contin- 
uous line  for  passengers  from  Lowell,  through  Amherst,  to  P^rances- 
town,  and  that  their  agents  and  drivers  might  engage  seats  for  the 
whole  distance,  at  such  rates  of  fare  as  they  thought  expedient ;  and 
the  amount  thus  received,  in  instances  where  they  thought  proper  to 
receive  less  than  the  regular  fare,  was  to  be  divided  between  said  pro- 
prietors, in  proportion  to  the  length  of  their  respective  routes  —  that  it 
was  also  agreed  that  if  tlie  defendant's  line  brought  down  to  Nashua  an 
extra  number  of  passengers,  Frencli  should  see  them  through,  and  be 
at  the  expense  of  furnishing  extra  coaches  and  horses,  if  necessar}-,  to 
convey  them  to  Lowell ;  and,  on  the  other  hand,  if  French's  line  brought 
up  an  extra  number  of  passengers  from  Lowell  to  Nashua,  the  proprietors 
of  the  defendant's  line  were  to  do  the  same,  for  the  conveyance  of  sucli 
passengers  above  Nashua  —  and  that  it  was  further  agreed  (as  Tuttle's 
line  ran  no  farther  than  from  Lowell  to  Nashua)  by  the  proprietors  of 
the  defendant's  line,  that  ihey  would  not  receive  into  their  coaches,  at 
Nashua,  passengers  for  places  above  Nashua,  who  came  up  from 
Lowell  to  Nashua  on  the  same  dav,  in  Tuttle's  line  ;  the  time  of  start- 
ing from  Lowell  and  arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is,  that  each  line  of  stage 
coaches  running  into  another,  so  as  to  form  a  continuous  mail  line,  shall 
give  preference  to  passengers  arriving  in  the  line  with  which  it  connects, 
and  shall  forward  them  in  preference  to  any  others. 

There  were  several  other  lines  which  started  from  Lowell  at  the  same 
time  with  the  lines  before  mentioned,  running  to  other  places,  through 


128  BENNETT   V.   BUTTON. 

Nashua ;  and  it  was  general!}-  the  understanding  between  their  respec- 
tive proprietors  that  one  line  should  not  take,  for  a  part  of  the  distance 
where  tlie  route  was  the  same,  passengers  who  were  going  on  further 
in  another  line ;  though  tliis  understanding  had  been  occasionally 
interrupted. 

The  plaintiff  being  at  Lowell  on  the  31st  of  Januarj-,  1837,  took  pas- 
sage and  was  conveyed  to  Nashua  in  Tuttle's  line  ;  and  immediatel}' 
on  his  arrival  at  Nashua  applied  to  be  received  into  the  defendant's 
coach,  and  tendered  the  amount  of  the  regular  fare.  There  was  room 
for  the  plaintiff  to  be  conveyed  on  to  Amlierst,  but  the  defendant 
refused  to  receive  him. 

The  plaintiff  was  notified  bj'  the  agent  for  the  line  of  French  and  the 
defendant,  at  Lowell,  previous  to  taking  passage  in  Tuttle's  coach  for 
Nashua,  that  if  he  wished  to  go  from  Nashua  to  Amherst  on  that  day, 
in  the  regular  mail  line,  he  nuist  take  the  mail  line  at  Lowell ;  and  that 
if  he  took  passage  in  Tuttle's  line  from  Lowell  to  Nashua  he  would  not 
be  received  at  Nashua  into  the  defendant's  coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the  plaintiff 
for  nominal  damages,  or  for  the  defendant,  according  to  the  opinion  of 
this  court  upon  these  facts. 

Cki7-k  &  G.  Y.  Sawyer,  for  the  plaintiff,  cited  Story  on  Bailment, 
380;  2  Ld.  Raym.  909,  Coggs  v.  Bernard;  Jones  on  Bailment,  109; 
2  Barn.  «&  Adolph.  803,  Kent  v.  Shuckard. 

Baker  (with  whom  was  C.  G.  Atherton)^  for  the  defendant.  It  is 
not  denied  that  ancientl\'  a  common  carrier  was  liable  for  refusing  to 
carry  goods  ;  a  common  innkeeper  for  refusing  to  receive  a  guest ;  a 
common  ferryman  for  refusing  to  carry  a  passenger;  and  generally, 
jierhaps,  that  there  was  an  implied  obligation  upon  every  one  standing 
before  tlie  public  in  a  particular  profession  or  employment  to  undertake 
the  duties  incumbent  upon  it ;  though  no  case  is  recollected  in  which  it 
has  been  determined  that  the  proprietor  of  a  stage  coach  is  liable  for 
refusing  to  receive  a  passenger.  2  Black.  451  ;  3  Black.  165  ;  1  Bac. 
Ab.  554  ;   1  Vent.  333  ;  2  Show.  327  ;   Hard.  163  ;  Rob.  Ent.  103. 

Formerh-  it  was  held  that  where  a  man  was  bound  to  an}'  duty,  and 
chargeable  to  a  certain  extent  h\  operation  of  law,  he  could  not,  b}"  an}' 
act  of  his  own,  discharge  himself  (1  Esp.  R.  36;  Noy's  Maxims,  92; 
Doc.  &  Stud.  270),  though  it  is  now  well  settled  that  this  obligation 
may  be  limited. 

A  liability  for  refusing  to  receive  a  passenger  may  be  qualified  by 
notice.  Without  notice  a  common  carrier  stands  in  the  situation  of  an 
insurer.  This  obligation  the  law  imposes  upon  him  the  moment  he 
takes  upon  himself  the  duties  of  carrier.  His  contract  with  the  public 
is  as  an  insurer ;  and  if  goods  are  committed  to  his  cai*e  while  stand- 
ing in  this  relation,  he  is  liable  as  such.  6  Johns.  160;  3  Esp.  127; 
Selw.  N.  P.  395;  1  Wils.  181  ;  1  Inst.  89;  IT.  R.  33,  57;  5  T.  R. 
389  ;  Story  on  Bailment,  328  ;   11  Pick.  42  ;  4  N.  H.  Rep.  306. 

But  this  contract,  which  is  general  with   the  public,  may  be  made 


BENNETT   V.    BUTTON.  129 

special.  One  who  proposes  to  carry  goods  may  undertake  the  business, 
not  of  a  common,  but  of  a  special,  carrier.  He  may  give  notice,  when 
he  commences  business,  that  he  does  not  assume  all  the  responsibilities 
of  a  common  carrier,  technically  so  called  ;  that  he  will  be  liable  to  a 
certain  extent,  and  upon  certain  conditions,  and  no  further.  He  ma}' 
thus  discharge  himself  from  all  responsibility,  except  perhaps  in  cases 
of  gross  negligence.  3  Stark.  337;  3  Camp.  27;  Story  on  Bail.  338, 
357 ;  3  Taunt.  271  ;  4  Camp.  41  ;  Jones  on  Bail.  104  ;  6  East,  oG4  ;  4 
Esp.  178  ;  1  H.  Black.  298.  But  the  carrier  is  not  liable  for  refusing 
to  receive  what  he  is  under  no  obligation  to  carry  (16  East,  244),  so 
that  the  carrier  of  goods  may  not  only  qualify  his  responsibility  for  the 
safe  transportation  of  goods,  but  his  liability  for  refusing  to  receive 
them. 

The  principle  to  be  derived  from  these  cases,  and  upon  which  they 
all  rest,  is,  that  although  the  law  imposes  certain  obligations  upon  one 
who  undertakes  the  duties  of  a  particular  profession  or  employment,  he 
is  at  liberty  to  assume  those  duties  but  in  part,  and  thus  limit  his  re- 
sponsibility, pi-ovided  he  gives  notice  of  his  intention,  generally,  and 
that  notice  is  brought  home  to  the  knowledge  of  the  party  interested. 
The  principle  is  confined  to  no  one  branch  or  department  of  business  ; 
to  no  one  case  or  class  of  cases.  Nothing  more  is  required  than  that 
public  notice  should  be  given  how  far  the  carrier  intends  to  limit  his 
responsibility,  and  that  it  should  be  known  to  the  person  to  be  affected 
bv  it  in  season  to  save  his  interest.  The  main  point  is  to  show  the  in- 
tention of  the  carrier,  and  to  communicate  knowledge  of  his  terms, 
seasonably,  to  the  individual  interested.  5  East,  510;  2  Camp.  108; 
1  Stark.  Cas.  418  ;  2  Ditto,  461  ;  4  Burr.  2298 ;  1  Str.  145  ;  1  Bac. 
Abr.  556  ;  2  Stark.  Ev.  338  ;  1  Pick.  50.  And,  provided  the  intention 
be  manifest,  it  is  not  mateilal  whether  any  other  person  may  have 
known  the  conditions,  except  the  party  whose  interest  they  may  affect. 
1  Str.  145  ;   4  Burr.  2298  ;  2  Stark.  Cas.  461. 

But,  yielding  these  points,  it  is  contended  that  the  defendant  is  not 
liable.  It  was  competent  for  him  to  make  all  such  rules  and  regula- 
tions as  might  be  necessary  for  the  convenient  and  successful  prosecu- 
tion of  the  employment  in  which  he  w^as  engaged.  To  prosecute  this 
employment,  to  discharge  his  duties  to  tlie  public,  and  particularly  to. 
the  post-office  department,  it  became  necessary  tliat  some  such  arrange- 
ment as  this  should  be  made.  It  was  as  proper  that  he  sliould  })rescribe 
the  place  where  a  passenger  should  be  received  as  the  time  when  he- 
should  be  received.  It  was  not  a  refusal  to  receive  all  passengers,  or- 
this  one  in  particular,  but  merely  the  regulation  of  the  mode  in  whi«k» 
they  would  be  received.  Persons  going  from  Nashua  to  Francestown. 
wei'e  received  at  Nashua.  Persons  going  from  Lowell  to  Francestown, 
■were  received  at  Lowell.  This  was  all  that  the  defendant  did.  It  was; 
a  mere  regulation  ;  not  a  refusal  to  discharge  a  duty  imposed  1)3'  law. 

Parker,  C.  J.  It  is  well  settled  that  so  long  as  a  common  carrier 
has  convenient  room  he  is  bound  to  receive  and  carr}'  all  goods  which 

9 


130  BENNETT    V.    DUTTON. 

are  offered  for  transportation,  of  the  sort  he  is  accustomed  to  carrj-,  if 
the}'  are  brought  at  a  reasonable  time,  and  in  a  suitable  condition. 
Stor}'  on  Bailment,  328  ;  5  Bing.  R.  217,  Riley  v.  Home. 

And  stage  coaches,  which  transport  goods  as  well  as  passengers,  are, 
in  respect  of  such  goods,  to  be  deemed  common  carriers,  and  respon- 
sible accordingl}'.     Story,  325. 

Carriers  of  passengers,  for  hire,  are  not  responsible,  in  all  particulars, 
like  common  carriers  of  goods.  The}-  are  not  insurers  of  personal 
safet}'  against  all  contingencies  except  those  arising  from  the  acts  of 
God  and  the  public  enemy.  For  an  injury  happening  to  the  person  of 
a  passenger  by  mere  accident,  without  fault  on  their  part,  they  are  not 
responsible  ;  but  are  liable  onh'  for  want  of  due  care,  diligence,  or  skill. 
This  results  from  the  different  nature  of  the  case.  But  in  relation  to 
the  baggage  of  their  passengers,  the  better  opinion  seems  to  be  that 
they  are  responsible  like  other  common  carriers  of  goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage  coach,  for  the 
regular  transportation  of  passengers,  for  hire,  from  place  to  place,  ari', 
as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all  passengers 
who  come,  so  long  as  they  have  convenient  accommodation  for  their 
safe  carriage,  unless  there  is  a  sufficient  excuse  for  a  refusal.  2  Sumner, 
221  ;  Jencks  v.  Coleman  ;  19  Wend.  R.  239. 

The  principle  which  requires  common  carriers  of  goods  to  take  all  that 
are  offered,  under  the  limitations  before  suggested,  seems  well  to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive  all 
comers.  8  N.  H.  Rep.  523,  Markham  v.  Brown.  The  character  of  the 
applicant,  or  his  condition  at  the  time,  ma}-  furnish  just  grounds  for  his 
exclusion.  And  his  object  at  the  time  may  furnish  a  sufficient  excuse 
for  a  refusal ;  as,  if  it  be  to  commit  an  assault  upon  another  passenger, 
or  to  injure  the  business  of  the  proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of  pas- 
sengers, for  hire,  in  his  stage  coach,  from  Nasliua  to  Amherst,  at  the 
time  of  the  plaintiff's  application.  It  is  admitted  there  was  room  in 
the  coach,  and  there  is  no  evidence  that  he  was  an  improper  person  to 
be  admitted,  or  that  he  came  within  any  of  the  reasons  of  exclusion 
before  suggested. 

It  has  been  contended  that  the  defendant  was  only  a  special  carrier 
of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  persons  gen- 
erally ;  but  the  facts  do  not  seem  to  show  a  holding  out  for  special  em- 
ployment. He  was  one  of  the  proprietors,  and  the  driver,  of  a  line  of 
stages,  from  Nashua  to  Amherst  and  Francestown.  They  held  them- 
selves out  as  general  passenger  carriers  between  those  places.  But  by 
reason  of  their  connection  with  French's  line  of  stages  from  Lowell  to 
Nashua,  they  attempted  to  make  an  exception  of  persons  who  came 
from  Lowell  to  Nashua  in  Tuttle's  stage,  on  the  same  day  in  which  they 
applied  for  a  passage  for  the  north.  It  is  an  attempt  to  limit  their  re- 
sponsibility in  a  particular  case  or  class  of  cases,  on  account  of  their 
agreement  with  French. 


BENNETT   V.    BUTTON.  131 

It  is  further  contended,  that  the  defendant  and  other  proprietors  had 
a  light  to  make  rules  for  the  regulation  of  their  business,  and  among 
them  a  rule  that  passengers  from  Lowell  to  Amherst  and  onward 
siiould  take  Frencli's  stage  at  Lowell,  and  that  l)y  a  notice  brouglit 
home  to  the  individual  the  general  responsibility  of  the  defendant,  if  it 
existed,  is  hmited. 

But  we  are  of  opinion  that  the  i)roprietors  had  no  right  to  limit  Iheir 
general  responsibility  in  this  manner. 

It  has  been  decided  in  New  York  that  stage  coach  proprietors  are 
answerable,  as  common  carriers,  for  the  baggage  of  passengers,  that 
they  cannot  restrict  their  common  law  liability  by  a  general  notice  that 
the  baggage  of  passengers  is  at  the  risk  of  the  owners,  and  that  if  a 
carrier  can  restrict  his  common  law  liability,  it  can  only  be  by  an  ex- 
press contract.  19  Wend.  234,  Hollister  v.  Nowlen.  And  this  prin- 
ciple was  applied,  and  the  proprietors  held  liable  for  the  loss  of  a  trunk, 
in  a  case  where  the  passenger  stopped  at  a  place  where  the  stages  were 
not  changed,  and  he  permitted  the  stage  to  proceed,  without  any  in- 
quir}'  for  his  baggage.  19  Wend.  251,  Cole  v.  Goodwin.  However 
this  ma}'  be,  as  there  was  room  in  the  defendant's  coach,  he  could  not 
have  objected  to  take  a  passenger  from  Nashua,  who  applied  there, 
merely  because  he  belonged  to  some  other  town.  That  would  furnish 
no  sufficient  reason,  and  no  rule  or  notice  to  that  effect  could  Umit  his 
duty.  And  there  is  as  little  legal  reason  to  justify  a  refusal  to  take  a 
passenger  from  Nashua,  merely  because  he  came  to  that  place  in  a  i)ar- 
ticular  conveyance.  The  defendant  might  well  have  desired  that  pas- 
sengers at  Lowell  should  take  French's  line,  because  it  connected  with 
his.  But  if  he  had  himself  been  the  proprietor  of  the  stages  from 
Lowell  to  Nashua  he  could  have  had  no  right  to  refuse  to  take  a  pas- 
senger from  Nashua,  merely  because  he  did  not  see  fit  to  come  to  that 
place  in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plaintiff 
came  to  Nashua  from  one  town  or  another,  or  hy  one  conve3-ance  or 
another.  That  the  [)laintiff  proposed  to  travel  onward  from  that  place 
could  not  injuriously  affect  the  defendant's  business  ;  nor  was  the  plaintiff 
to  be  punished  because  he  had  come  to  Nashua  in  a  particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to  give 
a  preference  to  the  passengers  who  came  in  French's  stage  ;  and  as 
they  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was  bound 
so  to  do,  without  an  agreement.  If,  after  they  were  accommodated, 
there  was  still  room,  he  was  bound  to  carry  the  plaintiff,  without  in- 
quiring in  what  line  he  came  to  Nashua. 

Judgment  for  the  plainti'ff. 


132  PEARSON   V.   DUANE. 

PEARSON  V.   DUANE. 
Supreme  Court  of  the  United  States,  1867. 

[4   Wall.  605.] 

In  the  mouth  of  June,  1856,  the  steamship  Stevens,  a  common  carrier 
of  passengers,  of  which  Pearson  was  master,  on  her  regular  voyage 
from  Panama  to  San  Francisco,  arrived  at  the  intermediate  port  of 
Acapulco,  where  Duane  got  on  board,  with  the  intention  of  pioceeding 
to  San  Francisco.  He  had,  sliortly  before  this,  been  banislied  from  that 
cit}-  by  a  revolutionary  yet  powerful  and  organized  body  of  men,  called 
"The  Vigilance  Committee  of  San  Francisco,"  upon  penalty  of  death 
in  case  of  return.  Pearson  ascertained  that  Duane  had  been  expelled 
from  California,  and  put  Duane  aboard  the  steamer  Sonora.  Duane 
filed  a  libel  in  admiralt}'  for  damages.^ 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

This  case  is  interesting  because  of  certain  novel  views  which  this 
court  is  asked   to  sustain. 

Two  questions  arise  in  it :  1st,  was  the  conduct  of  Pearson  justifi- 
able? 2d,  if  not,  what  should  be  the  proper  measure  of  damages?  It 
is  contended,  as  the  life  of  Duane  was  in  imminent  peril,  in  (;ase  of  his 
return  to  San  Francisco,  that  Pearson  was  justified,  in  order  to  save  it, 
in  excluding  him  from  his  boat,  notwithstanding  Duane  was  willing  to 
take  his  chances  of  being  hanged  by  the  Vigilance  Committee. 

Such  a  motive  is  certainly  commendable  for  its  humanity,  and  goes 
very  far  to  excuse  the  transaction,  but  does  not  justify  it.  Common 
carriers  of  passengers,  like  the  steamship  Stevens,  are  obliged  to  carry 
all  persons  who  apply  for  passage,  if  the  accommodations  are  sufficient, 
unless  there  is  a  proper  excuse  for  refusal.^ 

If  there  are  reasonable  objections  to  a  proposed  passenger,  the 
carrier  is  not  required  to  take  him.  In  this  case,  Duane  could  have 
been  well  refused  a  passage  when  he  first  came  on  board  the  boat, 
if  the  circumstances  of  his  banishment  would,  in  the  opinion  of  the 
master,  have  tended  to  promote  further  difficult}',  should  he  be  returned 
to  a  city  where  lawless  violence  was  supreme. 

But  this  refusal  should  have  preceded  the  sailing  of  the  ship.  After 
the  ship  had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  char- 
acter of  a  passenger,  or  to  his  peculiar  position,  provided  he  violated 
no  inflexible  rule  of  the  boat  in  getting  on  board.  This  was  not  done, 
and  the  defence  that  Duane  was  a  "stowaway,"  and  therefore  subject 
to  expulsion  at  any  time,  is  a  mere  pretence,  for  the  evidence  is  clear 
that  he  made  no  attempt  to  secrete  himself  until  advised  of  his  intended 
transfer  to  the  Sonora.  Although  a  railroad  or  steamboat  company 
can  properly  refuse  to  transport  a  drunken  or  insane  man,  or  one  whose 

1  Tho  statement  of  facts  has  been  condensed.  —  Ed. 

2  Jeucks  V.  Coleman^  2  Sumner,  221  ;  Bennett  v.  Dutton,  10  New  Hampshire,  486. 


CHICAGO    &    NORTHWESTERN    RAILWAY   V.   WILLIAMS.  133 

character  is  bad,  they  cannot  expel  him,  after  having  admitted  him  as 
a  passenger,  and  received  his  fare,  unless  he  misbehaves  during  the 
journey.^  Duane  conducted  Iiimself  properly  on  the  boat  until  his  ex- 
pulsion was  determined,  and  when  his  fare  was  tendered  to  the  purser, 
he  was  entitled  to  tlie  same  rights  as  other  passengers.  The  refusal  to 
carry  him  was  contrary  to  law,  although  the  reason  for  it  was  a  humane 
one.  The  apprehended  danger  mitigates  the  act,  but  affords  no  legal 
justification  for  it. 

But  the  sum  of  four  thousand  dollars  awarded  as  damages  in  this 
case  is  excessive,  bearing  no  proportion  to  the  injury  received.'^  .  .  . 
We  are  of  opinion  that  the  damages  should  be  reduced  to  $50. 

It  is  ordered  that  this  cause  be  remitted  to  the  Circuit  Court  for  the 
District  of  California,  with  directions  to  enter  a  decree  in  favor  of  the 
appellee  for  fifty  dollars.  It  is  further  ordered  that  each  party  pay  his 
own  costs  in  this  court.  Order  accordingly. 


CHICAGO   &   NORTHWESTERN  RAILWAY  v.   WILLIAMS. 
Supreme  Court  of  Illinois,  1870. 

[5.5  ///.  185.] 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court. 

There  is  but  one  question  of  any  considerable  importance  presented 
by  the  record  in  this  case. 

It  is  simply  whether  a  railroad  compan}',  which,  by  our  statute  and 
the  common  law,  is  a  common  carrier  of  passengers,  in  a  case  where 
the  com[)any,  by  their  rules  and  regulations,  have  designated  a  certain 
car  in  their  passenger  train  for  the  exclusive  use  of  ladies,  and  gentle- 
men accompanied  by  ladies,  can  exclude  from  the  privileges  of  such  car 
a  colored  woman  holding  a  first-class  ticket,  for  no  other  reason  except 
her  color. 

The  evidence  in  the  case  establishes  these  facts  —  that,  as  was  the 
custom  on  appellants'  road,  they  had  set  apart  in  their  passenger  trains 
a  car  for  the  exclusive  use  of  ladies,  and  gentlemen  accompanied  by 
ladies,  and  that  such  a  car,  called  the  "  ladies'  car,"  was  attached  to 
the  train  in  question.  The  appellee  resided  at  Rockford,  and  being  de- 
sirous of  going  from  that  station  to  Belvidere,  on  the  road  of  appellants, 
for  that  purpose  purchased  of  the  agent  of  the  appellants  a  ticket, 
which  entitled  the  holder  to  a  seat  in  a  first-class  car  on  their  road. 
On  the  arrival  of  the  train  at  the  Rockford  station  the  appellee  offered 
and  endeavored  to  enter  the  ladies'  car,  but  was  refused  pcru)ission  so 
to  do,  and  was  directed  to  go  forward  to  the  car  set  apart  for  and  occu- 
pied mostly  by  men.     On  the  appellee  persisting  on  entering  the  ladies' 

^  Coppiii  V.  Rraithwaite,  8  Jurist,  875 ;  Preiulergast  v.  Comptou,  8  Carriugtoii  and 
Payne,  462. 

2  The  discussion  of  this  point  is  omitted.  —  Ed. 


134  CHICAGO   &   NOETHWESTERN    RAILWAY   V.   WILLIAMS. 

car,  force  enough  was  used  b}-  the  brakeman  to  prevent  her.  At  the 
time  she  attempted  to  obtain  a  seat  in  that  car  on  appellants'  train 
there  were  vacant  and  unoccupied  seats  in  it,  for  one  of  the  female 
witnesses  states  that  she,  with  two  other  ladies,  a  few  moments  after- 
wards, entered  the  same  car  at  that  station  and  found  two  vacant  seats, 
and  occupied  the  same.  No  objection  whatever  was  made,  nor  is  it  in- 
sisted any  other  existed,  to  appellee  taking  a  seat  in  the  ladies'  car 
except  her  color.  The  appellee  was  clad  in  plain  and  decent  appaiel, 
and  it  is  not  suggested,  in  the  evidence  or  otherwise,  that  she  was  not 
a  woman  of  good  character  and  proper  behavior. 

It  does  not  appear  that  the  companj*  had  ever  set  apart  a  car  for  the 
exclusive  use,  or  provided  an}-  separate  seats  for  the  use  of  colored 
persons  who  might  desire  to  pass  over  their  line  of  road.  The  evidence 
discloses  that  colored  women  sometimes  rode  in  the  ladies'  car,  and 
sometimes  in  the  other  car,  and  there  was,  in  fact,  no  rule  or  regular 
tion  of  the  company  in  regard  to  colored  passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the  power 
of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all  reason- 
able rules  and  regulations  for  the  safety-  and  comfort  of  passengers 
travelling  on  their  lines  of  road.  It  is  not  only  their  right,  but  it  is  their 
duty  to  make  such  rules  and  regulations.  It  is  alike  the  interest  of 
the  companies  and  the  public  that  such  rules  should  be  established  and 
enforced,  and  ample  authority  is  conferred  by  law  on  the  agents  and 
servants  of  the  companies  to  enforce  all  reasonable  regulations  made  for 
the  safety  and  convenience  of  passengers. 

It  was  held,  in  the  case  of  the  111.  Cent.  R.  K.  Co.  v.  Whittemore, 
43  III.  423,  that  for  a  non-compliance  witii  a  reasonable  rule  of  the  com- 
pany, a  part}'  might  be  expelled  from  a  train  at  a  point  other  than  a 
regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane,  or  dangerous  and 
offensive  in  his  conduct,  it  is  the  duty  of  the  conductor  to  expel  such 
guilty  part}',  or  at  least  to  assign  him  to  a  car  where  he  will  not  en- 
danger or  annoy  the  other  passengers.  Whatever  rules  tend  to  the 
comfort,  order,  and  safety  of  the  passengers,  the  company  are  fully 
authorized  to  make,  and  are  amply  empowered  to  enforce  compliance 
therewith. 

But  such  rules  and  regulations  must  always  be  reasonable  and  uni- 
form in  respect  to  persons. 

A  railroad  company  cannot  capriciously  discriminate  between  pas- 
sengers on  account  of  their  nativity,  color,  race,  social  position,  or  their 
political  or  religious  beliefs.  Whatever  discriminations  are  made  must 
be  on  some  principle,  or  for  some  reason,  that  the  law  recognizes  as 
just  and  equitable,  and  founded  in  good  public  policy.  What  are 
reasonable  rules  is  a  question  of  law,  and  is  for  the  court  to  determine, 
under  all  the  circumstances  in  each  particular  case. 

In  the  present  instance  the  rule  that  set  apart  a  car  for  the  exclusive 


CHICAGO    &   NORTHWESTERN   RAILWAY   V.   WILLIAMS.  135 

use  of  ladies,  and  gentlemen  accompanied  b}'  ladies,  is  a  reasonable 
one,  and  the  powex*  of  the  compan}-  to  establish  it  has  never  been 
doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "  ladies'  car,"  for 
which  she  was  willing  to  pay,  and  had  paid,  full  compensation  to  the 
company,  a  privilege  which  is  accorded  alike  to  all  women,  whether 
they  are  rich  or  poor,  it  must  be  on  some  principle  or  under  some  rule 
of  the  company' that  the  law  would  recognize  as  reasonable  and  just. 
If  she  was  denied  that  privilege  by  the  mere  caprice  of  the  brakeman 
and  conductor,  and  under  no  reasonable  rule  of  the  company,  or  what 
is  still  worse,  as  the  evidence  would  indicate,  through  mere  wantonness 
on  the  part  of  the  brakeman,  then  it  was  unreasonable,  and  therefore 
unlawiul.  It  is  not  pretended  that  there  was  anj'  rule  that  excluded 
her,  or  that  the  managing  officers  of  the  company  had  ever  given  any 
directions  to  exclude  colored  persons  from  that  car.  If,  however,  there 
was  such  a  rule,  it  could  not  be  justified  on  the  ground  of  mere  preju- 
dice. Such  a  rule  must  have  for  its  foundation  a  better  and  a  sounder 
reason,  and  one  more  in  consonance  with  the  enlightened  judgment  of 
reasonable  men.  An  unreasonable  rule,  that  affects  the  convenience 
and  comfort  of  passengers,  is  unlawful,  simply  because  it  is  unreason- 
able.    The  State  v.  Overton,  4  Zab.  435. 

In  the  case  of  the  West  Chester  &  Philadelphia  R.  R.  Co.  v.  Miles, 
55  Penn.  209,  it  was  admitted  that  no  one  could  be  excluded  from  a 
carriage  by  a  public  carrier  on  account  of  color,  religious  belief,  politi- 
cal relations,  or  prejudice,  but  it  was  held  not  to  be  an  unreasonable 
regulation  to  seat  passengers  so  as  to  preserve  order  and  decorum  and 
prevent  contacts  and  collisions  arising  from  well-known  repugnances, 
and  therefore  a  rule  that  required  a  colored  woman  to  occupy  a  separate 
seat  in  a  car  furnished  b}'  the  company-,  equall}-  as  comfortable  and  safe 
as  that  furnished  for  other  passengers,  was  not  an  unreasonable  rule. 

Under  some  circumstances  this  might  not  be  an  unreasonable  rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate  seats 
equal  in  comfort  and  safety  to  those  furnished  for  other  travellers,  must 
be  held  to  have  no  right  to  discriminate  between  passengers  on  account 
of  color,  race,  or  nativity  alone. 

We  do  not  understand  that  the  appellee  was  bound  to  go  forward  to 
the  car  set  apart  for  and  occupied  mostly  by  men,  when  she  was  directed 
by  the  brakeman.  It  is  a  sufficient  answer  to  say  that  that  car  was  not 
provided  by  anj'  rule  of  the  company-  for  the  use  of  women,  and  that 
another  one  was.  This  fact  was  known  to  the  appellee  at  the  time. 
She  ma^'  have  undertaken  the  journey  alone,  in  view  of  that  very  fact, 
as  women  often  do. 

The  above  views  dispose  of  all  the  objections  taken  to  the  instructions 
given  by  the  court  on  behalf  of  the  appellee,  and  the  refusal  of  the 
court  to  give  those  asked  on  the  part  of  the  appellants,  except  the  one 
which  tells  the  jury  that  they  may  give  damages  above  the  actual  dam- 
ages sustained,  for  the  delay,  vexation,  and  indignity  to  which  tlie  ap- 


136  THE    D.    K.    MARTIN. 

pellee  was  exposed  if  she  was  wrongfully  excluded  from  the  car.  If  the 
part3'  in  such  case  is  confined  to  the  actual  pecuniary-  damages  sustained, 
it  would,  most  often,  be  no  compensation  at  all,  above  nominal  dam- 
ages, and  no  salutarj-  effect  would  be  produced  on  the  wrong  doer  by 
such  a  verdict.  But  we  apprehend  that  if  the  act  is  wrongfull}-  and 
wantonly  committed,  the  party  may  recover,  in  addition  to  the  actual 
damages,  something  for  the  indignity,  vexation,  and  disgrace  to  which 
the  party  has  been  subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the  slight 
injur}'  sustained. 

There  is  e\  idence  from  which  the  jury  could  find  that  the  brakeman 
treated  tiie  appellee  ver^'  rudely,  and  placecl  his  hand  on  her  and  pushed 
her  away  from  the  car.  The  act  was  committed  in  a  public  place,  and 
whatever  disgrace  was  inflicted  on  her  was  in  the  presence  of  strangers 
and  friends.  The  act  was,  in  itself,  wrongful,  and  without  the  shadow 
of  a  reasonable  excuse,  and  the  damages  are  not  too  high.  The  jur}' 
saw  the  witnesses,  and  heard  their  testimony,  and  with  their  finding 
we  are  full}'  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judymeyd  affirmed. 

THE   D.    R.    MARTIN. 

Circuit  Court  of  the  United  States,  So.  New  York,  1873. 

[11  Blatch.  233.] 

Hunt,  J.  On  the  trial  before  the  District  Judge,  the  libellant,  David 
F.  Barney,  recovered  tiie  sum  of  $1,000,  as  his  damages  for  ejecting 
bim  from  the  steamboat  D.  R.  Martin,  on  the  morning  of  October  23, 
1871.  On  an  application  subsequent!}'  made  to  him,  the  District  Judge 
reduced  the  recovery  to  the  sum  of  $500.  A  careful  perusal  of  all  the 
testimony  satisfies  me  that  the  libellant  was  pursuing  his  business  as 
an  express  agent  on  board  of  the  boat,  that  he  persisted  in  it  against  the 
remonstrance  of  the  claimant,  and  that  it  was  to  prevent  the  transac- 
tion of  that  business  by  him  on  board  of  the  boat,  that  he  was  ejected 
therefrom  by  the  claimant.  The  steamboat  company  owning  this  vessel 
were  common  carriers  between  Huntington  and  New  York.  They  were 
bound  to  transport  every  passenger  presenting  himself  for  transporta- 
tion, who  was  in  a  fit  condition  to  travel  by  such  conveyance.  They 
were  bound,  also,  to  carry  all  freight  presented  to  them  in  a  reasonable 
time  before  their  hours  of  starting.  The  capacity  of  their  accommoda- 
tion Avas  the  only  limit  to  their  obligation.  A  public  conveyance  of 
this  character  is  not,  however,  intended  as  a  place  for  the  transaction 
of  the  business  of  the  passengers.  The  suitable  carriage  of  persons  or 
property  is  the  only  duty  of  the  common  carrier.  A  steamboat  com- 
pany, or  a  railroad  company,  is  not  bound  to  furnish  travelling  con- 
veniences for  those  who  wish  to  engage,  on  their  vehicles,  in  the  business 


THE    D.    E.    MARTIN.  137 

of  selling  hooks,  papers,  or  articles  of  food,  or  in  the  business  of  receiv- 
ing and  distributing  parcels  or  baggage,  nor  to  permit  the  transaction 
of  tliis  business  in  their  vehicles,  when  it  interferes  with  their  own 
interests.  If  a  profit  may  arise  from  such  business,  tlie  benefit  of  it 
belongs  to  the  companv,  and  the}'  are  entitled  to  the  exclusive  use  of 
their  vehicles  for  such  purposes.  This  seems  to  be  clear  both  upon' 
principle  and  authorit}'.  (Story  on  Bailments,  §  591a/  Jencks  v.  Cole- 
man, 2  Sumner,  221  ;  Burgess  v.  Clements,  4  Manle  &  Sel.,  oOG  ;  Fell 
V.  Knight,  8  Mee.  &  W.,  269  ;  Commonwealth  v.  Power,  1  Am.  Railway' 
Cases,  389.)  These  cases  show  that  the  principle  thus  laid  down  is 
true  as  a  general  rule.  The  case  of  The  N.  J.  Steam  Nav.  Co.  v. 
Merchants'  Bank  (6  How.  344)  shows  that  it  is  especially  applicable 
to  those  seeking  to  do  an  express  business  on  such  conve3-ances.  It  is 
there  held,  in  substance,"  that  the  carrier  is  liable  to  the  owner  for  all 
the  goods  shipped  on  a  public  conveyance  bj'  an  express  company, 
without  regard  to  an\'  contract  to  the  contrar}'  between  the  carrier  and 
the  express  company.  Although  the  carrier  may  have  no  custody  or 
control  of  the  goods,  he  is  liable  to  the  owner  in  case  of  loss,  if  he 
allows  them  to  be  brought  on  board.  It  is  the  simplest  justice  that  he 
should  be  permitted  to  protect  himself  by  preventing  their  l)eing  brouglit 
on  board  by  those  having  them  in  charge.  This  rule  would  not  exclude 
the  transmission,  as  freight,  of  an}-  goods  or  property  which  the  owners 
or  agents  should  choose  to  place  under  the  care  and  control  of  the 
carrier. 

That  persons  other  than  the  libellants  carried  a  carpet  bag  without 
charge,  or  that  such  bag  occasionall}-  contained  articles  forwarded  by 
a  neighbor  or  procured  for  a  friend,  does  not  affect  the  carrier's  right. 
The  cases  where  this  was  proved  to  have  been  done  were  rare  and 
exceptional,  and  do  not  appear  to  have  been  known  to  the  carrier,  nor 
does  it  appear  that  an}'  compensation  was  paid  to  the  agent.  The}'' 
■were  neighborly  and  friendly  services,  such  as  people  in  the  country 
are  accustomed  to  render  for  each  other.  But,  if  the  service  and  the 
business  had  been  precisely  like  that  of  the  libellant  the  rule  would 
have  been  the  same.  The  rights  of  the  carrier  in  respect  to  A.  are  not 
gone  or  impaired,  for  the  reason  that  he  waives  his  rights  in  respect 
to  !>.,  especially  if  A.  be  notifi(Kl  that  the  rights  are  insisted  upon  as  to 
him.  If  Mr.  Prime  was  permitted  to  carry  a  bag  without  charge  on 
the  claimant's  boat,  or  to  do  a  limited  express  business  thereon,  this 
gave  the  libellant  no  right  to  do  such  business,  when  notified  by  the 
carrier  that  he  must  refrain  from  it.  A  carrier,  like  all  others,  may 
bestow  favor  where  he  chooses.  Rights,  not  favors,  are  the  subject  of 
demand  by  all  parties  indiscriminately.  The  incidental  benefit  arising 
from  the  transaction  of  such  business  as  may  be  done  on  board  of  a 
boat  or  on  a  car,  belongs  to  the  carrier,  and  he  can  allow  the  privilege 
to  one  and  exclude  from  it  another,  at  his  pleasure.  A  steamboat 
company  or  a  railroad  com[)any,  may  well  allow  an  individual  to  open 
a  restaurant  or  a  bar  on  their  conveyance,  or  to  do  the  business  of  boot 


138  BROWN   V.    MEMPHIS   &   C.    RAILROAD. 

blacking,  or  of  peddling  books  and  papers.  This  individual  is  under 
their  control,  subject  to  their  regulation,  and  the  business  interferes  in 
no  respect  with  the  orderly-  management  of  the  vehicle.  But  if  ever}' 
one  that  thinks  fit  can  enter  upon  the  performance  of  these  duties,  the 
control  of  the  vehicle  and  its  good  management  would  soon  be  at  an 
end.  The  cars  or  boats  are  those  of  the  carrier,  and,  I  think,  exclu 
sively  his,  for  this  purpose.  The  sale  or  leasing  of  these  rights  to  indi- 
viduals, and  the  exclusion  of  others  therefrom,  come  under  the  head  of 
reasonable  regulations,  which  the  courts  are  bound  to  enforce.  The 
right  of  transportation,  which  belongs  to  all  who  desire  it,  does  not 
carr\'  with  it  a  right  of  traffic  or  of  business. 

It  is  insisted  tliat  the  libellant  could  not  legall}'  be  ejected  from  the 
boat  for  any  offence,  or  violation  of  rules,  committed  on  a  former  occa- 
sion. It  is  insisted,  also,  that,  having  purchased  a  ticket  from  the 
agent  of  the  compan}',  his  right  to  a  passage  was  perfect.  Neither  of 
these  propositions  is  correct.  In  Commonwealth  v.  Power,  (7  Met.  596,) 
the  passenger  had  actual!}'  purchased  his  ticket,  and  the  Chief  Justice 
says  :  "If  he,  Hall,  gave  no  notice  of  his  intention  to  enter  the  car  as 
a  passenger,  and  of  his  right  to  do  so,  and  if  Power  believed  that  his 
intention  was  to  violate  a  reasonable  subsisting  regulation,  tlien  he  and 
his  assistants  were  justified  in  forcibly  removing  him  from  the  depot." 
In  Pearson  v.  Duane,  (4  Wallace,  605.)  Mr.  Justice  Davis,  in  giving  the 
opinion  of  the  court,  held  the  expulsion  of  Duane  to  have  been  illegal, 
because  it  was  delayed  until  the  vessel  had  sailed.  "  But  this  refusal," 
he  says,  "should  have  preceded  the  sailing  of  the  ship.  After  the  ship 
had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  character  of  a 
passenger,  or  to  his  peculiar  position,  provided  he  violated  no  inflexible 
rule  of  the  boat  in  getting  on  board."  The  libellant,  in  this  case,  re- 
fused to  give  an}'  intimation  that  he  would  abandon  his  trade  on  board 
the  vessel.  The  steamboat  company,  it  is  evident,  were  quite  willing 
to  carry  him  and  his  baggage,  and  objected  only  to  his  persistent  at- 
tempts to  continue  his  traffic  on  their  boat.  He  insisted  that  he  had 
the  right  to  pursue  it,  and  the  company  resorted  to  the  only  means  in 
their  power  to  compel  its  abandonment,  to  wit,  his  removal  from  the 
boat.  This  was  done  with  no  unnecessary  force,  and  was  accompanied 
by  no  indignity.  In  my  opinion,  the  removal  was  justified,  and  the 
decree  must  be  reversed.^ 


BROWN   V.  MEMPHIS    &    C.    RAILROAD. 
Circuit  Court  of  the  United  States,  W.  Tenn.,  1880. 

[5  Fed.  499.] 

This   was  a  common-law  action  for  the  wrongful  exclusion  of  the 
plaintiff,  a  colored  woman,  from  the  ladies'  car  of  the  defendant's  train, 
upon  her  refusal  to  take  a  seat  in  the  smoking-car.     At  the  time  of  her 
1  Ace.  Barney  v.  Oyster  Bay  &  H.  S.  B.  Co.,  67  N.  Y.  301.— Ed. 


BROWN    V.    MEMPHIS    &   C.    RAILROAD.  139 

exclusion  the  plaintiff  held  a  first-class  ticket  over  the  defendant's  road 
from  Corinth,  Mississippi,  to  Memphis,  Tennessee,  and  her  behavior 
while  in  the  car  was  lady-like  and  inoffensive.^ 

The  defendant  pleaded  that  tlie  plaintitf  was  a  notorious  and  public 
courtesan,  addicted  to  the  use  of  profane  language  and  offensive  habits 
of  conduct  in  public  places  ;  that  the  ladies'  car  was  set  apart  exclu- 
sively for  the  use  of  genteel  ladies  of  good  character  and  modest  de- 
portment, from  which  the  plaintiff  was  rightfull}'  excluded  because  of 
her  bad  character. 

Hammond,  District  Judge,  charged  the  jury  that  the  same  principles 
of  law  were  to  be  applied  to  women  as  men  in  determining  whether  the 
exclusion  was  lawful  or  not ;  that  the  social  penalties  of  exclusion  of 
unchaste  women  from  hotels,  theatres,  and  other  public  places  could 
not  be  imported  into  the  law  of  common  carriers  ;  that  they  liad  a  right 
to  travel  in  the  streets  and  on  the  public  liighways,  and  other  people 
who  travel  must  expect  to  meet  them  in  such  places  ;  and,  as  long  as 
their  conduct  was  unobjectionable  while  in  such  places,  they  could  not 
be  excluded.  The  carrier  is  bound  to  carry  good,  bad,  and  indifferent, 
and  has  nothing  to  do  with  the  morals  of  his  passengers,  if  their  be- 
havior be  proper  while  travelling.  Neither  can  the  carrier  use  the 
character  for  chastity  of  his  female  passengers  as  a  basis  of  classifica- 
tion, so  that  he  may  put  all  chaste  women,  or  women  who  have  the 
reputation  of  being  chaste,  into  one  car,  and  those  known  or  reputed 
to  be  unchaste  hi  another  car.  Such  a  regulation  would  be  contrary  to 
public  policy,  and  unreasonable.  It  would  put  every  woman  purchasing 
a  railroad  ticket  on  trial  for  her  virtue  before  tlie  conductor  as  her  judge, 
and,  in  case  of  mistake,  would  lead  to  breaches  of  the  peace.  It  would 
practically  exclude  all  sensible  and  sensitive  women  from  travelling  at 
all,  no  matter  how  virtuous,  for  fear  they  might  be  put  into  or  uncon- 
sciousl}'  occup}'  the  wrong  car.^ 

The  police  power  of  the  carrier  is  sufficient  protection  to  other  pas- 
sengers, and  he  can  remove  all  persons,  men  or  women,  whose  conduct 
at  the  time  is  annoying,  or  whose  reputation  for  misbehavior  and  in- 
decent demeanor  in  public  is  so  notoriously  bad  that  it  furnishes  a  rea- 
sonable ground  to  believe  that  the  person  will  be  offensive  or  annoying 
to  others  travelling  in  the  same  car ;  and  this  is  as  far  as  the  carrier 
has  any  right  to  go.  He  can  no  more  classify  women  according  to 
their  reputation  for  chastity,  or  want  of  it,  than  he  can  so  grade  the 
men.  Verdict  for  the  j)laintiff. 

1  Part  of  the  statement  of  facts  and  part  of  the  charge  are  omitted.  —  Ed. 

2  See  Brown  v.  R.  R.,  4  Fed.  37.  — Ed. 


140  McDUFFEE    V.    PORTLAND    &    ROCHESTER   RAILROAD. 

McDUFFEE    v.    PORTLAND   AND    ROCHESTER    RAILROAD. 

Supreme  Judicial  Court  of  New  Hampshire,  1873. 

[52  N.  11.  430.] 

Case,  b}'  Daniel  McDuffee  against  the  Portland  &  Rochester  Rail- 
road, for  not  furnishing  the  plaintiff  terms,  facilities,  and  accommoda- 
tions for  his  express  business  on  the  defendants'  road,  between  Rochester, 
N.  H. ,  and  Portland,  Me. ,  reasonably  equal  to  those  furnished  b^'  the 
defendants  to  the  Eastern  Express  Company. 

The  defendants  demurred  to  the  declaration.-^ 

Doe,  J.  I.  A  common  carrier  is  a  public  carrier.  He  engages  in  a 
public  employment,  takes  upon  himself  a  public  dut}',  and  exercises  a 
sort  of  public  office.  Sandford  v.  R.  Co.,  24  Pa.  St.  378,  381  ;  N.  J. 
S.  N.  Co.  v.  Merchants'  Bank,  6  How.  344,  382  ;  Shelden  v.  Robinson, 
7  N.  H.  157,  163,  164;  Gray  v.  Jackson,  51  N.  H.  9,  10;  Ansell  v. 
Waterhouse,  2  Chitty,  1,  4;  HoUister  v.  Nowlen,  19  Wend.  234,  239. 
He  is  under  a  legal  obligation  :  others  have  a  corresponding  legal  right. 
His  duty  being  public,  the  correlative  right  is  public.  The  public  right 
is  a  common  right,  and  a  common  right  signifies  a  reasonably  equal 
right.  "  Tiiere  are  certain  cases  in  which,  if  individuals  dedicate  their 
personal  services,  or  the  temporaiy  use  of  tiieir  propert}-,  to  the  public, 
the  law  will  impose  certain  duties  upon  them,  and  regulate  their  pro- 
ceedings to  a  certain  extent.  Thus,  a  common  carrier  is  bound  by 
law,  if  he  have  conveniences  for  the  purpose,  to  carry  for  a  reasonable 
compensation."  Olcott  v.  Banfill,  4  N.  H.  537,  546.  "  He  [the  com- 
mon carrier]  holds  a  sort  of  official  relation  to  the  public.  He  is 
bound  to  carry  at  reasonable  rates  such  commodities  as  are  in  his  line 
of  business,  for  all  persons  who  offer  them,  as  early  as  his  means  will 
allow.  He  cannot  refuse  to  cany  a  proper  article,  tendered  to  him  at 
a  suitable  time  and  place,  on  the  offer  of  the  usual  reasonable  compen- 
sation. Story  on  Bailments,  sec.  508;  Riley  v.  Home,  5  Bing.  217, 
224  ;  Bennett  v.  Dutton,  10  N.  H.  486.  When  he  undertakes  the  busi- 
ness of  a  common  carrier,  he  assumes  this  relation  to  the  public,  and 
he  is  not  at  liberty  to  decline  the  duties  and  responsil>ilities  of  his 
place,  as  thev  are  defined  and  fixed  by  law."  Moses  v.  B.  &  M.  R.  R., 
24  N.  H.  71,  88,  89.  On  this  ground  it  Avas  held,  in  that  case,  that 
a  common  carrier  could  not,  by  a  public  notice,  discharge  himself  from 
the  legal  responsibility  pertaining  to  his  office,  or  from  performing  his 
pul)lic  duty  in  the  wa}'  and  on  the  terms  prescribed  by  law. 

"The  very  definition  of  a  common  carrier  excludes  the  idea  of  the 
right  to  grant  monopolies,  or  to  give  special  and  unequal  preferences. 
It  implies  indifference  as  to  whom  thej'  may  serve,  and  an  equal  readi- 
ness to  serve  all  who  may  apply,  and  in  the  order  of  their  application." 
N.  E.  Express  Co.  v.  M.  C.  R.  R.  Co.,  57  Me.  188,  196.     A  common 

^  Araruments  of  counsel  are  omitted.  —  Ed. 


McDUFFEE   V.    PORTLAND    &    ROCHESTER    RAILROAD.  141 

carrier  of  passengers  cannot  exercise  an  unreasonable  discrimination  in 
carrying  one  and  refusing  to  carr>'  anotber.  Bennett  v.  Button,  10  N.  H. 
481.  A  common  carrier  of  freight  cannot  exercise  an  unreasonable 
discrimination  in  carrying  for  one  and  refusing  to  carry  for  another. 
He  ma}'  be  a  common  carrier  of  one  kind  of  property,  and  not  of  an- 
other ;  but,  as  to  goods  of  which  he  is  a  common  carrier,  he  cannot 
discriminate  unreasonably  against  any  individual  in  the  performance  of 
the  public  duty  which  he  assumed  when  he  engaged  in  the  occupation 
of  carrying  for  all.  His  service  would  not  be  i)ublic  if,  out  of  the  per- 
sons and  things  in  his  line  of  business,  he  could  arbitrarily  select  whom 
and  what  he  would  carrj'.  Such  a  power  of  arbitrary  selection  would 
destroy  the  public  character  of  his  employment,  and  the  rights  which 
the  public  acquired  when  he  volunteered  in  the  public  service  of  common- 
carrier  transportation.  With  such  a  power,  he  would  be  a  carrier,  — • 
a  special,  private  carrier,  —  but  not  a  common,  public  one.  From  the 
public  service  —  which  he  entered  of  his  own  accord  —  he  may  retire, 
ceasing  to  be  a  common  carrier,  with  or  without  the  public  consent, 
according  to  the  law  applicable  to  his  case  ;  but,  as  long  as  he  remains 
in  the  service,  he  must  perform  the  duties  appertaining  to  it.  The 
remedies  for  neglect  or  violation  of  duty  in  the  civil  service  of  tlie 
State  are  not  the  same  as  in  the  military  service  ;  but  the  pul)lic  rights 
of  having  the  duties  of  each  performed  are  much  the  same,  and,  in 
the  department  now  under  consideration,  ample  remedies  are  not  want- 
ing. The  right  to  the  transportation  service  of  a  common  carrier  is  a 
common  as  well  as  a  public  right,  belonging  to  every  individual  as  well 
as  to  the  State.  A  right  of  conveyance,  unreasonably-  and  injuriously 
preferred  and  exclusive,  and  made  so  by  a  special  contract  of  the  com- 
mon carrier,  is  not  the  common,  public  right,  but  a  violation  of  it. 
And  when  an  individual  is  specially  injured  bj-  such  a  violation  of  the 
common  right  which  he  is  entitled  to  enjoy,  he  may  have  redress  in  an 
action  at  common  law.  The  common  carrier  has  no  cause  to  complain 
of  his  legal  responsibility.  It  was  for  him  to  consider  as  well  the  duty 
as  the  profit  of  being  a  public  servant,  before  embarking  in  that  busi- 
ness. The  profit  could  not  be  considered  without  taking  the  duty  into 
account,  for  the  rightful  profit  is  the  balance  of  compensation  left  after 
paying  the  expenses  of  performing  the  dut}'.  And  he  knew  before- 
hand, or  ought  to  have  known,  that  if  no  profit  should  accrue,  the  per- 
formance of  the  duty  would  be  none  the  less  obligator}'  until  he  should 
be  discharged  from  the  public  service.  Taylor  v.  Railway,  48  N.  H. 
304,  317.  The  chances  of  profit  and  loss  are  his  risks,  being  necessary 
incidents  of  his  adventure,  and  for  him  to  judge  of  before  devoting  his 
time,  labor,  care,  skill,  and  capital  to  the  service  of  the  countr}-. 
Profitable  or  unprofitable,  his  condition  is  that  of  one  held  to  service, 
having  by  his  own  act,  of  his  own  free  will,  submitted  himself  to  that 
condition,  and  not  having  liberated  himself,  nor  been  released,  from  it. 

A  common  carrier  cannot  directly  exercise  unreasonable  discrimina- 
tion as  to  whom  and  what  he  will  carry.     On  what  legal  ground  can 


142  McDUFFEE   V.   PORTLAND    &   ROCHESTER   RAILROAD. 

he  exercise  such  discrimination  indirectly?  He  cannot,  without  good 
reason,  while  carrying  A,  unconditionalh'  refuse  to  carr\-  B.  On  what 
legal  ground  can  he,  without  good  reason,  while  providing  agreeable 
terms,  facilities,  and  accommodations  for  the  conveyance  of  A  and  his 
goods,  provide  such  disagreeable  ones  for  B  that  he  is  practically  com- 
pelled to  stay  at  home  with  his  goods,  deprived  of  his  share  of  the 
common  right  of  transportation?  What  legal  principle,  guaranteeing 
the  common  right  against  direct  attack,  sanctions  its  destruction  by  a 
circuitous  invasion?  As  no  one  can  infringe  the  common  right  of 
travel  and  commercial  intercourse  over  a  public  highwa\-,  on  land  or 
water,  b}'  making  the  way  absolutely'  impassable,  or  rendering  its  pas- 
sage unreasonably  unpleasant,  unhealth}',  or  unprofitable,  so  a  com- 
mon carrier  cannot  infringe  the  common  right  of  common  cariiage, 
either  by  unreasonably  refusing  to  carry  one  or  all,  for  one  or  for  all, 
or  by  imposing  unreasonabl}'  unequal  terms,  facilities,  or  accommoda- 
tions, which  would  practicallv  amount  to  an  embargo  upon  the  travel 
or  traffic  of  some  disfavored  individual.  And,  as  all  common  carriers 
combined  cannot,  directh'  or  indirectly,  destroy  or  interrupt  the  com- 
mon right  by  stopping  their  branch  of  the  public  service  while  the}' 
remain  in  that  service,  so  neither  all  of  them  together  nor  one  alone 
can,  directl}'  or  indirectl}',  deprive  any  individual  of  his  lawful  enjoy- 
ment of  the  common  right.  Equality,  in  the  sense  of  freedom  from 
unreasonable  discrimination,  being  of  the  ver}'  substance  of  the  com- 
mon right,  an  individual  is  deprived  of  his  lawful  enjoyment  of  the 
common  right  when  he  is  subjected  to  unreasonable  and  injurious  dis- 
crimination in  respect  to  terms,  facilities,  or  accommodations.  That  is 
not,  in  the  ordinary'  legal  sense,  a  public  highway,  in  which  one  man  is 
unreasonabl}'  privileged  to  use  a  convenient  path,  and  another  is  un- 
reasonably restricted  to  the  gutter  ;  and  that  is  not  a  public  service  of 
common  carriage,  in  which  one  enjo3's  an  unreasonable  preference  or 
advantage,  and  another  suffers  an  unreasonable  prejudice  or  disadvan- 
tage. A  denial  of  the  entire  right  of  service  bj-  a  refusal  to  carry, 
differs,  if  at  all,  in  degree  only,  and  the  amount  of  damage  done,  and 
not  in  the  essential  legal  character  of  the  act,  from  a  denial  of  the 
right  in  part  by  an  unreasonable  discrimination  in  terras,  facilities,  or 
accommodations.  Whether  the  denial  is  general  by  refusing  to  furnish 
any  transportation  whatever,  or  special  by  refusing  to  carry  one  person 
or  his  goods  ;  whether  it  is  direct  by  expressly  refusing  to  carry,  or 
indirect  by  imposing  such  unreasonable  terras,  facilities,  or  accommo- 
dations as  render  carriage  undesirable  ;  whether  unreasonableness  of 
terms,  facilities,  or  accommodations  operates  as  a  total  or  a  partial 
denial  of  the  right ;  and  whether  the  unreasonableness  is  in  the  intrin- 
sic, individual  nature  of  the  terms,  facilities,  or  accommodations,  or  in 
their  discriminating,  collective,  and  comparative  character,  —  the  right 
denied  is  one  and  the  same  common  right,  which  would  not  be  a  right 
if  it  could  be  rightfully  denied,  and  would  not  be  common,  in  the  legal 
sense,  if  it  could  be  legall}-  subjected  to  unreasonable  discrimination, 


McDUFFEE   V.    PORTLAND   &   ROCHESTER   RAILROAD.  143 

and  parcelled  out  among  men  in  unreasonably  superior  and  inferior 
grades  at  the  behest  of  the  servant  from  whom  the  service  is  due. 

The  commonness  of  the  right  necessarily  implies  an  equality  of  right, 
in  the  sense  of  freedom  from  unreasonable  discrimination  ;  and  any 
practical  invasion  of  the  common  right  by  an  unreasonable  discrimina- 
tion practised  by  a  carrier  held  to  the  common  service  is  insul)ordi- 
nation  and  mutiny,  for  which  he  is  liable,  to  the  extent  of  the  damage 
inflicted,  in  an  action  of  case  at  common  law.  The  question  of  reason- 
ableness of  price  may  be  something  more  than  tlie  question  of  actual 
cost  and  value  of  service.  If  the  actual  value  of  certain  transportation 
of  one  hundred  barrels  of  flour,  affording  a  reasonable  profit  to  the 
carrier,  is  one  hundred  dollars  ;  if,  all  the  circumstances  that  ought  to 
be  considered  being  taken  into  account,  that  sum  is  the  price  which 
ought  to  be  charged  for  that  particular  service ;  and  if  the  carrier 
charges  everybody  that  price  for  that  service,  there  is  no  encroachment 
on  the  common  right.  But  if  for  that  service  the  carrier  charges  one 
flour  merchant  one  hundred  dollars,  and  another  fifty  dollars,  the  com- 
mon right  is  as  manifestly  violated  as  if  the  latter  were  charged  one 
hundred  dollars,  and  the  former  two  hundred.  What  kind  of  a  com- 
mon right  of  carriage  would  that  be  which  the  carrier  could  so  admin- 
ister as  to  unreasonably,  capriciously,  and  despotically  enrich  one  man 
and  ruin  another?  If  the  service  or  price  is  unreasonable  and  injuri- 
ous, the  unreasonableness  is  equally  actionable,  whether  it  is  in  in- 
equality or  in  some  other  particular.  A  service  or  price  that  would 
otherwise  be  reasonable  may  be  made  unreasonable  b}'  an  unreason- 
able discrimination,  because  such  a  discrimination  is  a  violation  of  the 
common  riglit.  There  might  be  cases  where  persons  complaining  of 
such  a  violation  would  have  no  cause  of  action,  because  the}-  would 
not  be  injured.  There  might  be  cases  where  the  discrimination  would 
be  injurious;  in  such  cases  it  would  be  actionable.  There  might  be 
cases  where  the  remedy  b}'  civil  suit  for  damages  at  common  law 
would  be  practically  ineffectual  on  account  of  the  difficult}'  of  proving 
large  damages,  or  the  incompetence  of  a  multiplicity  of  such  suits  to 
abate  a  continued  grievance,  or  for  other  reasons  ;  in  such  cases  there 
would  be  a  plain  and  adequate  remedy,  where  there  ought  to  be  one, 
by  the  re-enforcing  operation  of  an  injunction,  or  by  indictment,  infor- 
mation, or  other  common,  familiar,  and  appropriate  course  of  law. 

The  common  and  equal  right  is  to  reasonable  transportation  service 
for  a  reasonable  compensation.  Neither  the  service  nor  the  price  is 
necessarily  unreasonable  because  it  is  unequal,  in  a  certain  narrow, 
strict,  and  literal  sense  ;  but  that  is  not  a  reasonable  service,  or  a 
reasonable  price,  which  is  unreasonably'  unequal.  The  question  is  not 
merely  whether  the  service  or  price  is  absolutely  unequal,  in  the  nar- 
rowest sense,  but  also  whether  the  inequalit}-  is  unreasonable  and 
injurious.  There  may  be  acts  of  charity  ;  there  may  be  different  prices 
for  dilTerent  kinds  or  amounts  of  service  ;  there  may  be  many  differ- 
ences of  price  and  service,  entirely  consistent  with  the  general  prin- 


144  McDUFFEE   V.   PORTLAND   &   ROCHESTER   RAILROAD. 

ciple  of  reasonable  equality'  which  distinguishes  the  dut}'  of  a  common 
carrier  in  the  legal  sense  from  the  duty  of  a  carrier  who  is  not  a  com- 
mon one  in  that  sense.  A  certain  inequaUt}'  of  terms,  facilities,  or 
accommodations  ma}'  be  reasonable,  and  required  hy  the  doctrine  of 
reasonableness,  and  tlierefore  not  an  infringement  of  the  common 
right.  It  ma}'  be  the  dut}'  of  a  common  carrier  of  passengers  to  carry 
under  discriminating  restrictions,  or  to  refuse  to  carry  those  who,  b}' 
reason  of  their  physical  or  mental  condition,  would  injure,  endanger, 
disturb,  or  anno}'  other  passengers  ;  and  an  analogous  rule  may  be 
applicable  to  the  common  carriage  of  goods.  Healthy  passengers  in  a 
palatial  car  would  not  be  provided  with  reasonable  accommodations  if 
they  were  there  unreasonably  and  negligentl}'  exposed  by  the  carrier 
to  the  society  of  small-pox  patients.  Sober,  quiet,  moral,  and  sensi- 
tive travellers  ma}'  have  cause  to  complain  of  their  accommodations  if 
they  are  unreasonably  exposed  to  the  companionship  of  unrestrained, 
intoxicated,  noisy,  profane,  and  abusive  passengers,  who  may  enjoy 
the  discomfort  they  cast  upon  otliers.  In  one  sense,  both  classes,  car- 
ried together,  might  be  provided  with  equal  accommodations  ;  in  another 
sense,  they  would  not.  The  feelings  not  corporal,  and  the  decencies  of 
progressive  civilization,  as  well  as  physical  life,  health,  and  comfort, 
are  entitled  to  reasonable  accommodations.  2  Greenl.  Ev.  sec.  222  a; 
Bennett  v.  Button,  10  N.  He  481,  486.  Mental  and  moral  sensibilities, 
unreasonably  wounded,  may  be  an  actual  cause  of  suffering,  as  plain 
as  a  broken  limb ;  and  if  the  injury  is  caused  by  unreasonableness  of 
facilities  or  accommodations  (which  is  synonymous  with  unreasonable- 
ness of  service),  it  may  be  as  plain  a  legal  cause  of  action  as  any 
bodily  hurt,  commercial  inconvenience,  or  pecuniary  loss.  To  allow 
one  passenger  to  be  made  uncomfortable  by  another  committing  an 
outrage,  without  physical  violence,  against  the  ordinary  proprieties  of 
life  and  the  common  sentiments  of  mnnkind,  may  be  as  clear  a  viola- 
tion of  the  common  right,  and  as  clear  an  actionable  neglect  of  a 
common  carrier's  duty,  as  to  permit  one  to  occupy  two  seats  while 
another  stands  in  the  aisle.  Although  reasonableness  of  service  or 
price  may  require  a  reasonable  discrimination,  it  does  not  tolerate  an 
unreasonable  one  ;  and  the  law  does  not  require  a  court  or  jury  to 
waste  time  in  a  useless  investigation  of  the  question  whether  a  proved 
injurious  unreasonableness  of  service  or  price  was  in  its  intrinsic  or 
in  its  discriminating  quaUty.  The  main  question  is,  not  whether  the 
unreasonableness  was  in  this  or  in  that,  but  whether  there  was  un- 
reasonableness, and  wliether  it  was  injurious  to  the  plaintiff. 

This  question  may  be  made  unnecessarily  difficult  by  an  indcfinite- 
ness,  confusion,  and  obscurity  of  ideas  that  may  arise  when  the  public 
duty  of  a  common  carrier,  and  the  correlative  common  right  to  his 
reasonable  service  for  a  reasonable  price,  are  not  clearly  and  broadly 
distinguished  from  a  matter  of  private  charity.  If  A  receives,  as  a 
charity,  transportation  service  without  price,  or  for  less  than  a  reason- 
able price,  from  B,  who  is  a  common  carrier,  A  does  not  receive  it  as 


McDUFFEE    V.    TORTLAXD   &,   ROCHESTER   RAILROAD.  145 

Iiis  Giijoyment  of  the  common  right ;  B  does  not  give  it  as  a  pei'form- 
ance  of  liis  public  duty  ;  C,  who  is  required  to  pay  a  reasonaljle  price 
for  a  reasonable  service,  is  not  injured  ;  and  the  public,  suppiic^l  with 
reasonable  facilities  and  accommodations  on  reasonable  terms,  cannot 
complain  that  B  is  violating  his  public  duty.  There  is,  in  such  a  case, 
no  discrimination,  reasonable  or  unreasonable,  in  that  reasonable  ser- 
vice for  a  reasonal)le  |)rice  which  is  the  common  right.  A  person  who 
is  a  common  cai-rier  ma\'  devote  to  the  need}',  in  any  necessary  form 
of  relief,  all  the  reasonable  i)rofits  of  his  l)usiness.  lie  has  the  same 
right  that  any  one  else  has  to  give  money  or  goods  or  transportation 
to  the  poor.  But  it  is  neither  his  legal  duty  to  be  charitable  at  his 
own  expense,  nor  his  legal  right  to  be  charitable  at  the  expense  of 
those  whose  servant  he  is.  If  his  reasonable  compensation  for  certain 
carriage  is  one  hundred  dollars,  and  his  just  proflt,  not  needed  in  his 
business,  is  one  tenth  of  that  sum,  he  has  ten  dollars  which  he  may 
legally  use  for  feeding  the  hungry,  clothing  the  naked,  or  carrying 
those  in  poverty  to  whom  transportation  is  one  of  the  necessaries  of 
life,  and  who  suffer  for  lack  of  it.  But  if  he  charges  the  ten  dollars  to 
those  who  pay  him  for  their  transportation,  if  he  charges  them  one 
hundred  and  ten  dollars  for  one  hundred  dollars'  worth  of  service,  he 
is  not  benevolent  himself,  but  he  is  undertaking  to  compel  those  to  be 
benevolent  who  are  entitled  to  his  service ;  he  is  violating  the  common 
right  of  reasonal)le  terms,  which  cannot  be  increased  bj'  compulsory 
contributions  for  any  charitable  purpose.  So,  if  he  carries  one  or 
man}'  for  half  the  reasonable  price,  and  reimburses  himself  by  charging 
others  more  than  the  reasonable  price,  he  is  illegallj-  administering, 
not  his  own,  but  other  people's  charity.  And  when  he  attempts  to 
justify  an  instance  of  apparent  discrimination  on  the  ground  of  char- 
itN',  it  ma}'  be  necessary  to  ascertain  whose  charity  was  dispensed,  — 
whether  it  was  his,  or  one  forced  by  him  from  others,  including  the 
party  complaining  of  it.  But  it  will  not  be  necessary  to  consider  this 
point  further  until  there  is  some  reason  to  believe  that  what  the  plain- 
tiff complains  of  is  defended  as  an  act  of  disinterested  benevolence 
performed  by  the  railroad  at  its  own  expense. 

In  Garton  v.  B.  &  E.  R.  Co.,  1  B.  &  S.  112,  154,  165,  when  it  was 
not  found  that  any  unreasonable  inequality  had  been  made  by  the 
defendants  to  the  detriment  of  the  plaintiffs,  it  was  held  that  a  reason- 
able price  paid  by  them  was  not  made  unreasonable  by  a  less  price 
paid  by  others,  —  a  proposition  sufficiently  plain,  and  expressed  by 
Crompton,  J.,  in  another  form,  when  he  said  to  the  plaintiffs'  counsel 
during  the  argument  of  that  case  :  "  The  charging  another  person  too 
little  is  not  charging  you  too  much."  The  proposition  takes  it  for 
granted  that  it  has  been  settled  that  the  price  paid  by  the  party  com* 
plaining  was  reasonable,  —  a  conclusion  that  settles  the  whole  contro- 
versy as  to  that  price.  But  before  that  conclusion  is  reached,  it  raay 
be  necessary  to  determine  whether  the  receipt  of  a  less  pri'/e  from 
another  person  was  a  matter  of  charity,  or  an  unreasonable  discrimi- 

10 


146  McDUFFEE   V.   PORTLAND    &   EOCHESTER   RAILROAD. 

nation  and  a  violation  of  the  common  right.  Charging  A  less  than  B 
for  the  same  service,  or  service  of  the  same  value,  is  not  of  itself  neces- 
sarih'  charging  A  too  little,  or  charging  B  too  much  ;  but  it  may  be 
evidence  tending  to  show  that  B  is  charged  too  much,  either  by  being 
charged  more  than  the  actual  value  of  the  service,  or  by  being  made 
the  victim  of  an  unjustifiable  discrimination.  The  doctrine  of  reason- 
ableness is  not  to  be  overturned  hy  a  conclusive  presumption  that  every 
inequalit}'  of  price  is  the  work  of  alms-giving,  dictated  b}'  a  motive  of 
humanit}'.  If  an  apparent  discrimination  turns  out,  on  examination, 
to  have  been,  not  a  discrimination  in  the  performance  of  the  public 
duty,  but  a  private  charit}-,  there  is  an  end  of  the  case.  But  if  an  ap- 
parent discrimination  is  found  to  have  been  a  real  one,  the  question 
is  whether  it  was  reasonable,  and,  if  unreasonable,  whether  the  party 
complaining  was  injured  b\-  it. 

In  some  cases,  this  raa^'  be  an  inquiry  of  some  difficult}'  in  each  of 
its  branches.  But  such  difficulty  as  there  ma\'  be  will  arise  from  the 
breadth  of  the  inquiry,  the  intricate  nature  of  the  matter  to  be  investi- 
gated, the  circumstantial  character  of  the  evidence  to  be  weighed,  and 
the  application  of  the  legal  rule  to  the  facts,  and  not  from  an}'  want  of 
clearness  or  certainty'  in  the  general  principle  of  the  common  law  ap- 
plicable to  the  subject.  The  difficulty  will  not  be  in  tlie  common  law, 
and  cannot  be  justly  overcome  by  altering  that  law.  The  inquiry  may 
sometimes  be  a  broad  one,  but  it  will  never  be  broader  than  the  justice 
of  the  case  requires.  A  narrow  view  that  would  be  partial  cannot  be 
taken  ;  a  narrow  test  of  right  and  wrong  that  would  be  grossh'  inequi- 
table cannot  be  adopted.  If  tlie  "doctrine  of  reasonableness  is  not  the 
doctrine  of  justice,  it  is  for  him  who  is  dissatisfied  with  it  to  show  its 
injustice  ;  if  it  is  the  doctrine  of  justice,  it  is  for  him  to  show  the 
grounds  of  his  discontent. 

The  decision  in  N.  E.  Express  Co.  v.  M.  C.  R.  Co.,  57  Me.  188,  sat- 
isfactorily disposed  of  the  argument,  vigorously  and  ably  pressed  by 
the  defendants  in  that  case,  that  a  railroad,  carrying  one  expressman 
and  his  freight  on  passenger  trains,  on  certain  reasonable  conditions, 
but  under  an  agreement  not  to  perform  a  like  service  for  others,  does 
not  thereby  hold  itself  out  as  a  common  carrier  of  expressmen  and 
their  freight  on  passenger  trains,  on  similar  conditions.  So  far  as  the 
common  right  of  mere  transportation  is  concerned,  and  without  reference 
to  the  peculiar  liability  of  a  common  carrier  of  goods  as  an  insurer, 
sucli  an  arrangement  would,  necessarily  and  without  hesitation,  be 
found,  by  the  court  or  the  jury,  to  be  an  evasion.  A  railroad  corpora- 
tion, cax-rying  one  expressman,  and  enabling  him  to  do  all  the  express 
business  on  the  line  of  their  road,  do  hold  themselves  out  as  common 
carriers  of  expresses  ;  and  when  they  unreasonabl}-  refuse,  directl}-  or 
indirectly,  to  carry  any  more  public  servants  of  that  class,  they  perform 
this  duty  with  illegal  partiality.  The  legal  principle,  which  establishes 
and  secures  the  common  right,  being  the  perfection  of  reason,  the  right 
is  not  a  mere  nominal  one.  and  is  in  no  danger  of  being  destroyed  hy 


McDUFFEE  V.    PORTLAND  &  UOCUESTER  KAILROAD.      147 

a  quibble.  If  there  could  possibly  be  a  case  in  which  the  exclusive 
anangeuient  in  favor  of  one  expressman  would  not  be  an  evasion  of 
the  common-law  right,  the  question  might  arise  whether,  under  our 
statute  law  (Gen.  Stats,  chs.  145,  14G,  149,  150),  public  railroad  cor- 
porations are  not  common  carriers  (at  least  to  the  extent  of  furnishing 
reasonable  facilities  and  accommodations  of  transportation  on  reason- 
able terms)  of  such  passengers  and  such  freight  as  there  is  no  good 
reason  for  their  refusing  to  carrj'. 

The  public  would  seem  to  have  reason  to  claim  that  the  clause  of 
Gen.  Stats,  ch.  146,  sec.  1,  —  "  Railroads  being  designed  for  the  public 
accommodation,  like  other  highways,  are  public,"  —  is  a  very  compre- 
hensive provision  ;  that  public  agents,  taking  private  property  for  the 
public  use,  are  bound  to  treat  all  alike  (that  is,  without  unreasonable 
preference)  so  far  as  the  property  is  used,  or  its  use  is  rightfully  de- 
manded, by  the  public  for  whose  use  it  was  taken  ;  and  that,  in  a 
country  professing  to  base  its  institutions  on  the  natural  equality  of 
men  in  respect  to  legal  lights  and  remedies,  it  cannot  be  presumed 
that  the  legislature  intended,  in  the  charter  of  a  common  carrier,  to 
grant  an  implied  power  to  create  monopolies  in  the  express  business, 
or  in  any  other  business,  by  undue  and  unreasonable  discriminations. 
There  would  seem  to  be  great  doubt  whether,  upon  any  fair  construc- 
tion of  general  or  special  statutes,  a  common  carrier,  incorporated  in 
this  country,  could  be  held  to  have  received  from  the  legislature  the 
power  of  making  unreasonable  discriminations  and  creating  monopolies, 
unless  such  power  were  conferred  in  ver}'  explicit  terms.  And,  if  such 
power  were  attempted  to  be  conferred,  there  would  be,  in  this  State,  a 
question  of  the  constitutional  authority  of  tlie  legislature  to  convey  a 
prerogative  so  hostile  to  the  character  of  our  institutions  and  the  spirit 
of  the  organic  law.  But,  resting  the  decision  of  this  case,  as  we  do, 
on  the  simple,  elementarj',  and  unrepealed  principle  of  tlie  common 
law,  equally'  applicable  to  individuals  and  corporations,  we  have  no 
occasion,  at  present,  to  go  into  these  other  inquiries.-' 

Case  dischargeel." 

1  The  rest  of  the  opinion  is  omitted.  —  Ed. 

2  "  An  express  company  engaged  in  the  business  of  transporting  small' packages  has 
as  good  a  right  to  tlie  benefits  of  the  railroad  as  the  owners  of  the  packages  possess  in 
person.  It  is  impossible  that  they  can  all  appear  in  person  to  claim  their- rights,  and 
it  is  sufiicient  that  they  are  represented  by  agents  who  are  intrusted  with  thoir  goods, 
and  have  a  special  property  in  them.  The  business  of  carrying  what  is  called  "ex- 
press matter  "  has  recently  grown  up,  and  is  productive  of  great  public  advantage. 
The  objection  to  carrying  such  matters,  on  the  ground  of  the  novelty  of  the  business, 
has  nothing  in  it  deserving  serious  consideration.  If  all  the  improvements  of  this  pro- 
gressive age  are  to  be  excluded  from  railroad  transportation  because  they  were  not  in 
existence  when  the  charters  were  granted  for  the  roads,  the  public  would  soon  be  de- 
prived of  the  chief  value  of  these  important  works.  The  law  is  not  so  unreasonable  in 
its  constructions.  The  rights  of  express  agents  or  carriers  have  been  fully  recognized 
in  this  respect  in  England.  They  are  entitled  to  equal  benefits  with  others,  and  no 
exclusive  advantages  can  be  granted  to  others  to  their  injury.  Pickford  v.  G.  J.  Ry., 
10  M.  &  W.  397  ;  Parker  v.  G.  W.  Ry.,  7  M.  &  G.  2.5.3  ;  Parker  v.  G.  W.  Ry.,  11  C.  B 
545,  583."—  Lewis,  C.  J.,  in  Sandfoird  v.  R.  R.,  24  Pa.  378. 

Ace.  New  Eng.  Exp.  Co.  v.  R   R.,  57  Me   188. —  Ed. 


148  THE    EXPRESS   CASES. 


THE   EXPRESS    CASES. 
Supreme  Court  of  the  United  States,  1886. 
[117  U.  S.  1.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court.^ 

These  suits  present  substantial I3'  the  same  questions  and  may  prop- 
erly be  considered  together.  They  were  each  brought  b}'  an  express 
compan}'  against  a  railwa}'  company  to  restrain  the  railwaj'  company 
from  interfering  with  or  disturbing  in  an}'  manner  the  facilities  there- 
tofore afforded  the  express  company  for  doing  its  business  on  the 
railway  of  the  railway  company.  .  .  .  The  evidence  shows  that  the 
express  business  was  first  organized  in  the  United  States  about  the 
year  1839.  ...  It  has  become  a  public  necessity,  and  ranks  in  im- 
portance with  the  mails  and  with  the  telegraph.  It  employs  for  tlie 
purposes  of  transportation  all  the  important  railroads  in  the  United 
States,  and  a  new  road  is  rarely  opened  to  the  public  without  being 
equipped  in  some  form  with  express  facilities.  It  is  used  in  almost 
every  conceivable  wa}',  and  for  almost  every  conceivable  purpose,  by 
the  people  and  by  the  government.  All  have  become  accustomed  to 
it,  and  it  cannot  be  taken  away  without  breaking  up  many  of  the  long 
settled  habits  of  business,  and  interfering  materially  with  the  con- 
veniences of  social  life. 

In  this  connection  it  is  to  be  kept  in  mind  that  neither  of  the  rail- 
road companies  involved  in  these  suits  is  attempting  to  deprive  the 
general  public  of  the  advantages  of  an  express  business  over  its  road. 
The  controversy,  in  each  case,  is  not  with  the  public  but  with  a  single 
express  company.  And  the  real  question  is  not  whether  the  railroad 
companies  are  authorized  by  law  to  do  an  express  business  themselves  ; 
nor  whether  they  must  carry  express  matter  for  the  public  on  their 
passenger  trains,  in  the  immediate  charge  of  some  person  specially 
appointed  for  that  purpose ;  nor  whether  they  shall  carr}'  express 
freights  for  express  companies  as  they  carry  like  freights  for  the  gen- 
eral public ;  but  whether  it  is  their  duty  to  furnish  the  Adams  Com- 
pany or  the  Southern  Compan}'  facilities  for  doing  an  express  business 
upon  their  roads  the  same  in  all  respects  as  those  they  provide  for 
themselves  or  afford  to  any  other  express  companv. 

When  the  business  began  railroads  were  in  their  infancy.  They 
were  few  in  number,  and  for  comparatively  short  distances.  There 
has  never  been  a  time,  however,  since  the  express  business  was  started 
that  it  has  not  been  encouraged  by  the  railroad  companies,  and  it  is 
no  doubt  true,  as  alleged  in  each  of  the  bills  filed  in  these  cases,  that 
"  no  railroad  compan}'  in  the  United  States  .  .  .  has  ever  refused  to 
transport  express  matter  for  the  public,  upon  the  application  of  some 
express  company  of  some  form  of  legal  constitution.     Every  railway 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


THE    EXPRESS    CASES.  149 

company  .  .  .  has  recognized  the  right  oC  the  public  to  demand  trans- 
portation by  the  railwa}'  facilities  which  the  public  has  permitted  to  be 
created,  of  that  class  of  matter  which  is  known  as  express  matter." 
Eixpress  comi)anies  have  undoiibtedlj'  invested  their  capital  and  built 
up  their  business  in  the  hope  and  expectation  of  securing  and  keeping 
for  themselves  such  railway  facilities  as  they  needed,  and  railroad  com- 
panies have  likewise  relied  upon  the  express  business  as  one  of  their 
important  sources  of  income. 

But  it  is  neither  averred  in  the  bills,  nor  shown  b}-  the  testimony, 
that  any  railroad  company  in  the  United  States  has  ever  held  itself 
out  as  a  common  carrier  of  express  companies,  that  is  to  say,  as  a 
common  carrier  of  common  carriers.  On  the  contrary  it  has  been 
shown,  and  in  fact  it  was  conceded  upon  the  argument,  that,  down  to 
tiie  time  of  bringing  these  suits,  no  railroad  company  had  taken  an 
express  company  on  its  road  for  business  except  under  some  special  con- 
tract, verbal  or  written,  and  generally  written,  in  which  the  rights  and  the 
duties  of  the  respective  parties  were  carefully  fixed  and  defined.  Tliese 
contracts,  as  is  seen  by  those  in  these  records,  vary  necessarily  in  their 
details,  according  to  the  varying  circumstances  of  each  particular  case, 
and  according  to  the  judgment  and  discretion  of  the  parties  immedi- 
ately concerned.  It  also  appears  that,  with  very  few  exceptions,  onl}' 
one  express  company  has  been  allowed  b}'  a  railroad  company  to  do 
business  on  its  road  at  the  same  time.  In  some  of  the  States,  statutes 
have  been  passed  which,  either  in  express  terms  or  by  judicial  inter- 
pretation, require  railroad  companies  to  furnish  equal  facilities  to  all 
express  companies,  Gen.  Laws  N.  H.,  1878,  ch.  163,  §  2;  Rev.  Stat. 
Maine,  1883,  494,  ch.  51,  §  134;  but  these  are  of  comparative  recent 
origin,  and  thus  far  seem  not  to  have  been  generally  adopted.  .   .  . 

The  reason  is  obvious  why  special  contracts  in  reference  to  this  busi- 
ness are  necessary.  The  transportation  required  is  of  a  kind  whicli 
must,  if  possible,  be  had  for  the  most  part  on  passenger  trains.  It 
requires  not  only  speed,  but  reasonable  certainty  as  to  the  quantity 
that  will  be  carried  at  any  one  time.  As  the  things  carried  are  to  be 
kept  in  the  personal  custody'  of  the  messenger  or  other  employe  of  the 
express  company,  it  is  important  that  a  certain  amount  of  car  space 
should  be  specially  set  apart  for  the  business,  and  that,  this  should,  as 
far  as  practicable,  be  put  in  the  exclusive  possession  of  the  express- 
man in  charge.  As  the  business  to  be  done  is  "  express,"  it  implies 
access  to  the  train  for  loading  at  the  latest,  and  for  unloading  at  the 
earliest,  convenient  moment.  All  this  is  entirely  inconsistent  with  the 
idea  of  an  express  business  on  passenger  trains  free  to  all  express 
carriers.  Railroad  companies  are  by  law  carriers  of  both  persons  and 
propert}'.  Passenger  trains  have  from  the  beginning  been  provided  for 
the  transportation  primarily  of  passengers  and  their  baggage.  This 
must  be  done  with  reasonable  promi)tness  and  with  reasonable  comfort 
to  the  passenger.  The  express  business  on  passenger  trains  is  in  a 
degree  subordinate  to  the  passenger  business,  and  it  is  consequently 


150  THE    EXPEESS   CASES. 

the  dut}'  of  a  railroad  compan}-  in  arranging  for  the  express  to  see  that 
there  is  as  little  interference  as  possible  with  the  wants  of  passengers. 
This  implies  a  special  understanding  and  agreement  as  to  the  amoup.t 
of  car  space  tiiat  will  be  afforded,  and  the  conditions  on  which  it  is  to 
be  occupied,  the  particular  trains  that  can  be  used,  the  places  at  which 
the}'  shall  stop,  the  price  to  be  paid,  and  all  the  varying  details  of  a 
business  which  is  to  be  adjusted  between  two  public  servants,  so  that 
each  can  perform  in  the  best  manner  its  own  particular  duties.  All 
this  must  necessarily-  be  a  matter  of  bargain,  and  it  by  no  means  fol- 
lows that,  because  a  railroad  company-  can  serve  one  express  company 
in  one  way,  it  can  as  well  serve  another  company  in  the  same  waj',  and 
still  perform  its  other  obligations  to  the  public  in  a  satisfactory  manner. 
The  car  space  that  can  be  given  to  the  express  business  on  a  passenger 
train  is,  to  a  certain  extent,  limited,  and,  as  has  been  seen,  that  which 
is  allotted  to  a  particular  carrier  must  be,  in  a  measure,  under  his  exclu- 
sive control.  No  express  companj'  can  do  a  successful  business  unless 
it  is  at  all  times  reasonably'  sure  of  the  means  it  requires  for  trans- 
portation. On  important  lines  one  company  will  at  times  fill  all  the 
space  the  railroad  compan}'  can  well  allow  for  the  business.  If  this 
space  had  to  be  divided  among  several  companies,  there  might  be  occa- 
sions when  the  public  would  be  put  to  inconvenience  by  delays  which 
could  otherwise  be  avoided.  So  long  as  the  public  are  served  to  their 
reasonable  satisfaction,  it  is  a  matter  of  no  importance  who  serves 
them.  The  railroad  company  performs  its  whole  duty  to  the  public  at 
large  and  to  each  individual  when  it  affords  the  public  all  reasonable 
express  accommodations.  If  this  is  done  the  railroad  company'  owes 
no  dut\'  to  the  public  as  to  the  particular  agencies  it  shall  select  for 
that  purpose.  The  public  require  the  carriage,  but  the  compan\'  may 
choose  its  own  appropriate  means  of  carriage,  alwa\'s  provided  they  are 
such  as  to  insure  reasonable  promptness  and  security. 

The  inconvenience  that  would  come  from  allowing  more  than  one 
express  company  on  a  railroad  at  the  same  time  was  apparentlj'  so 
well  understood  both  by  the  express  companies  and  the  railroad  com- 
panies that  tlie  three  principal  express  companies,  the  Adams,  the 
American,  and  the  United  States,  almost  immediately  on  their  organ- 
ization, now  more  than  thirty  3'ears  ago,  b}'  agreement  divided  the 
territory  in  the  United  States  traversed  by  railroads  among  themselves, 
and  since  that  time  each  has  confined  its  own  operations  to  the  par- 
ticular roads  which,  under  this  division,  have  been  set  apart  for  its 
special  use.  No  one  of  these  companies  has  ever  interfered  with  the 
other,  and  each  has  worked  its  allotted  territor}',  always  extending  its 
lines  in  the  agreed  directions  as  circumstances  would  permit.  At  the 
beginning  of  the  late  civil  war  the  Adams  Company  gave  up  its  terri- 
tory' in  the  Southern  States  to  the  Southern  Company,  and  since  then 
the  Adams  and  the  Southern  have  occupied,  under  arrangements 
between  themselves,  that  part  of  the  ground  originally  assigned  to  tlie 
Adams  alone.     In  this  way  these  three  or  four  important  and  in  flu- 


THE    EXPRESS    CASES.  151 

ential  companies  were  able  substantially  to  control,  from  1854  until 
about  the  time  of  the  bringing  of  these  suits,  all  the  railway  express 
business  in  the  United  States,  except  upon  the  Pacific  roads  and  in 
certain  comparatively  limited  localities.  In  fact,  as  is  stated  in  the 
argument  for  the  express  companies,  the  Adams  was  occupying  when 
these  suits  were  brought,  one  hundred  and  fift\ -five  railroads,  witli  a 
mileage  of  21,216  miles,  the  American  two  hundred  roads,  with  a  mile- 
age of  28,000  miles,  and  the  Southern  ninet3--five  roads,  with  a  mileage 
of  10,000  miles.  Through  their  business  arrangements  M'ith  each  other, 
and  with  other  connecting  lines,  they  have  been  able  for  a  long  time 
to  receive  and  contract  for  the  deliver}'  of  an}'  package  committed  to 
their  charge  at  almost  any  place  of  importance  in  the  United  States 
and  in  Canada,  and  even  at  some  places  in  Europe  and  the  "West 
Indies.  The}'  have  invested  millions  of  dollars  in  their  business,  and 
have  secured  public  confidence  to  such  a  degree  that  they  are  trusted 
unhesitatingly  by  all  who  need  their  services.  The  good  v/ill  of  their 
business  is  of  very  great  value,  if  they  can  keep  their  present  facilities 
for  transportation.  The  longer  their  lines  and  the  more  favorable  their 
connections,  the  greater  will  be  their  own  profits,  and  the  better  their 
means  of  serving  the  public.  In  making  their  investments  and  in 
extending  their  business,  they  have  undoubtedly  relied  on  securing  and 
keeping  Aivorable  railroad  transportation,  and  in  this  they  were  en- 
couraged by  the  apparent  willingness  of  railroad  companies  to  accom- 
modate them  ;  but  the  fact  still  remains  that  they  have  never  been 
allowed  to  do  business  on  any  road  except  under  a  special  contract, 
and  that  as  a  rule  only  one  express  company  has  been  admitted  on  a 
road  at  the  same  time. 

The  territory  traversed  by  the  railroads  involved  in  the  present  suits 
is  part  of  that  allotted  in  the  division  between  the  express  companies 
to  the  Adams  and  Southern  companies,  and  in  due  time  after  the  roads 
were  built  these  companies  contracted  with  the  railroad  companies  for 
the  privileges  of  an  express  business.  The  contracts  were  all  in  writ- 
ing, in  which  the  rights  of  the  respective  parties  were  clearly  defined, 
and  there  is  now  no  dispute  about  what  they  were.  Each  contract 
contained  a  provision  for  its  termination  by  either  party  on  notice. 
That  notice  has  been  given  in  all  the  cases  by  the  railroad  companies, 
and  the  express  companies  now  sue  for  relief.  Clearly  this  cannot  be 
afl!'orded  by  keeping  the  contracts  in  force,  for  both  parties  have  agreed 
that  they  may  be  terminated  at  any  time  by  either  party  on  notice  ; 
nor  by  making  new  contracts,  because  that  is  not  within  the  scope 
of  judicial  power. 

The  exact  question,  then,  is  whether  these  express  companies  can  now 
demand  as  a  right  what  they  have  heretofore  had  only  as  by  permission. 
That  depends,  as  is  conceded,  on  whether  all  railroad  companies  are 
now  by  law  charged  with  the  duty  of  carrying  all  express  companies 
in  the  way  that  express  carriers  when  taken  are  usually  carried,  just  as 
they  are  with  the  duty  of  carrying  all  passengers  and  freights  when 


152  THE    EXPEESS    CASES. 

offered  in  the  way  that  passengers  and  freight  are  carried.  The  con- 
tracts which  these  companies  once  had  are  now  out  of  the  way,  and 
the  companies  at  this  time  possess  no  other  rights  than  such  as  belong 
to  an}-  other  company  or  person  wisliing  to  do  an  express  business 
npon  these  roads.  If  the}-  are  entitled  to  the  relief  they  ask  it  is 
because  it  is  tlie  dut}'  of  the  railroad  companies  to  furnish  express 
facilities  to  all  alike  who  demand  them. 

The  constitutions  and  the  laws  of  the  States  in  whi^h  the  roads  are 
situated  place  the  companies  that  own  and  operate  them  on  the  foot- 
ing of  common  carriers,  but  there  is  nothing  which  in  positive  terms 
requires  a  railroad  company  to  carr}-  all  express  companies  in  the  way 
that  under  some  circumstances  they  may  be  able  without  inconvenience 
to  carry  one  company.  In  Kansas,  the  Missouri,  Kansas,  and  Texas 
Compau}-  must  furnish  sufficient  accommodations  for  tlie  transporta- 
tion of  all  such  express  freight  as  may  be  offered,  and  in  each  of  the 
States  of  Missouri,  Arkansas,  and  Kansas  railroad  companies  are  prob- 
abh"  prohibited  from  making  unreasonable  discriminations  in  their  busi- 
ness as  carriers,  but  this  is  all,. 

Such  being  the  case,  the  right  of  the  express  companies  to  a  decree 
depends  upon  their  showing  the  existence  of  a  usage,  having  the  force 
of  law  in  the  express  business,  which  requires  railroad  companies  to 
carr}'  all  express  companies  on  their  passenger  trains  as  express  carri- 
ers are  usuall}'  carried.  It  is  not  enough  to  establish  a  usage  to  carrj' 
some  express  company,  or  to  furnish  the  pul)lic  in  some  way  with  the 
advantages  of  an  express  business  over  the  road.  The  question  is  not 
whether  these  railroad  companies  must  furnish  the  general  public  with 
reasonable  express  facilities,  but  whether  they  must  carry  these  par- 
ticular express  carriers  for  the  purpose  of  enabling  them  to  do  an 
express  business  over  the  lines. 

In  all  these  voluminous  records  there  is  not  a  syllable  of  evidence  to 
show  a  usage  for  the  carriage  of  express  companies  on  the  passenger 
trains  of  railroads  unless  specialh'  contracted  for.  "While  it  has  uni- 
formly been  the  habit  of  railroad  companies  to  arrange,  at  the  earliest 
practicable  moment,  to  take  one  express  company  on  some  or  all  of 
their  passenger  trains,  or  to  provide  some  other  wa}'  of  doing  an  ex- 
press business  on  their  lines,  it  has  never  been  the  practice  to  grant 
such  a  privilege  to  more  than  one  company  at  the  same  time,  unless  a 
statute  or  some  special  circumstances  made  it  necessary  or  desirable. 
The  express  companies  that  bring  these  suits  are  certainly  in  no  situ- 
ation to  claim  a  usage  in  their  favor  on  these  particular  roads,  because 
their  entr}'  was  original!}-  under  special  contracts,  and  no  other  compa- 
nies have  ever  been  admitted  except  by  agreement.  Bv  the  terms  of 
their  contracts  the}-  agreed  that  all  their  contract  rights  on  the  roads 
should  be  terminated  at  the  will  of  the  railroad  company.  They  were 
Avilling  to  begin  and  to  expand  their  business  upon  this  understanding, 
and  with  tliis  uncertainty  as  to  the  duration  of  their  privileges.  The 
stoppage  of  their  facilities  was  one  of  the  risks  they  assumed  when 


THE    EXPRESS   CASES.  153 

they  accepted  their  contracts,  and  made  their  investments  under  them. 
If  the  general  pubHc  were  complaining  because  the  railroad  companies 
refused  to  carry  express  matter  themselves  on  their  i)assenger  trains, 
or  to  allow  it  to  be  carried  by  others,  different  questions  would  be 
presented.  As  it  is,  we  have  only  to  decide  whether  these  particular 
express  companies  must  be  carried  notwithstanding  the  termination  of 
their  special  contract  rights. 

The  ditficulty  in  the  cases  is  apparent  from  the  form  of  the  decrees. 
As  express  companies  had  always  been  carried  by  railroad  companies 
under  special  contracts,  which  established  the  duty  of  the  railroad  com- 
pany upon  the  one  side,  and  fixed  the  liability  of  the  express  company' 
on  the  other,  the  court,  in  decreeing  the  carriage  was  substantial!}- 
compelled  to  make  for  the  parties  such  a  contract  for  the  business  as 
in  its  opinion  they  ought  to  have  made  for  themselves.  Having  found 
that  the  railroad  compan}'  should  furnish  the  express  compan}-  with 
facilities  for  business,  it  had  to  define  what  those  facilities  must  be, 
and  it  did  so  by  declaring  that  they  should  be  furnished  to  the  same 
extent  and  upon  the  same  trains  that  the  company  accorded  to  itself 
or  to  an}'  other  compan}'  engaged  in  conducting  an  express  business 
on  its  line.  It  then  prescribed  the  time  and  manner  of  making  the 
pa3-ment  for  the  facilities  and  how  the  payment  should  be  secured,  as 
well  as  how  it  should  be  measured.  Thus,  by  the  decrees,  these  rail- 
road com[)anies  are  compelled  to  carry  these  express  companies  at 
these  rates,  and  on  these  terras,  so  long  as  they  ask  to  be  carried,  no 
matter  what  other  express  companies  pay  for  the  same  facilities  or 
what  such  facilities  may,  for  the  time  being,  be  reasonably  worth,  unless 
tlie  court  sees  fit,  under  the  power  reserved  for  that  purpose,  on  the 
ap|)lication  of  either  of  the  parties,  to  change  the  measure  of  compen- 
sation. In  tins  way  as  it  seems  to  us,  "  the  court  has  made  an  arrange- 
ment for  the  business  intercourse  of  these  companies,  such  as,  in  its 
opinion,  they  ought  to  have  made  for  themselves,"  and  that,  we  said 
in  Atc/iisou,  Topeka  and  Santa  Fe  Railroad  Co.  v.  Denver  &  Neio 
Orleans  Railroad  Co.,  110  U.  S.  667,  followed  at  this  term  in  Pidl- 
nians  Palace  Car  Co.  v.  Jlissouri  Pacific  Railway  Co.,  115  U.  S.  587, 
could  not  be  done.  The  regulation  of  matters  of  this  kind  is  legisla 
live  in  its  character,  not  judicial.  To  what  extent  it  must  come,  if  it 
comes  at  all,  from  Congress,  and  to  what  extent  it  ma}'  come  from  the 
States,  ai-e  questions  we  do  not  now  undertake  to  decide  ;  but  that  it 
must  come,  when  it  does  come,  from  some  source  of  legislative  power, 
we  do  not  doubt.  The  legislature  may  impose  a  duty,  and  when  im- 
posed it  will,  if  necessary,  be  enforced  by  the  courts,  but,  unless  a  duty 
has  been  created  either  by  usage  or  by  contract,  or  by  statute,  the 
courts  cannot  be  called  on  to  give  it  effect. 

The  decree  in  each  of  the  cases  is  reversed,  ajid  the  suit  is  remanded, 
with  directions  to  dissolve  the  injunction,  and,  after  adjusting  the 
accounts  betu^een  the  parties  for  bnsifiess  done  while  the  injunc- 
tions tcere  in  force,  and  decreeing  the  pngment  of  any  amounts 
that  may  be  found  to  be  due,  to  dismiss  the  bills. 


154  THE    EXPRESS   CASES. 

Mr.  Justice  Miller  dissenting. 

When  tliese  cases  were  argued  before  Circuit  Judge  McCrar^-  and 
myself  at  St.  Louis,  after  due  consideration  and  consultation  with  him 
and  Judge  Treat,  of  the  District  Court,  I  announced  certain  proposi- 
tions as  the  foundations  on  which  the  decrees  should  be  rendered. 
These  were  afterwards  entered  in  the  various  circuits  to  which  the 
cases  properl}'  belonged,  and,  1  believe,  in  strict  accordance  with  the 
principles  thus  announced. 

I  am  still  of  opinion  that  those  principles  are  sound,  and  I  repeat 
them  here  as  the  reasons  of  my  dissent  from  the  judgment  of  the 
court  now  pronounced  in  these  cases. 

They  met  the  approval  of  Judge  McCrary  when  the}'  were  submitted 
to  his  consideration.  They  were  filed  in  the  court  in  the  following 
language  : 

"•1.  I  am  of  opinion  that  what  is  known  as  the  express  business  is 
a  branch  of  the  carrying  trade  that  has,  by  the  necessities  of  com- 
merce and  the  usages  of  those  engaged  in  transportation,  become 
known  and  recognized. 

"That,  while  it  is  not  possible  to  give  a  definition  in  terms  which 
will  embrace  all  classes  of  articles  usually  so  carried,  and  to  define  it 
with  a  precision  of  words  of  exclusion,  the  general  character  of  the 
business  is  sufficiently  known  and  recognized  to  require  the  court  to 
take  notice  of  it  as  distinct  from  the  transportation  of  the  large  mass 
of  freight  usually  carried  on  steamboats  and  railroads. 

"  That  the  object  of  this  express  business  is  to  carry  small  and  valu- 
able packages  rapidly,  in  such  a  manner  as  not  to  subject  them  to  the 
danger  of  loss  and  damage,  which,  to  a  greater  or  less  degree,  attends 
the  transportation  of  heavy  or  bulky  articles  of  commerce,  as  grain, 
flour,  iron,  ordinary  merchandise,  and  the  like. 

"  2.  It  has  become  law  and  usage,  and  is  one  of  the  necessities  of 
this  business,  that  these  packages  should  be  in  the  immediate  charge  of 
an  agent  or  messenger  of  the  person  or  company  engaged  in  it,  and  to 
refuse  permission  to  tliis  agent  to  accompany  these  packages  on  steam- 
boats or  railroads  on  which  they  are  carried,  and  to  deny  them  the 
right  to  the  control  of  them  while  so  carried,  is  destructive  of  the 
business  and  of  the  rights  which  the  public  have  to  the  use  of  the  rail- 
roads in  this  class  of  transportation. 

"3.  I  am  of  the  opinion  that  when  express  matter  is  so  confided 
to  the  charge  of  an  agent  or  messenger,  the  railroad  company  is  no 
longer  liable  to  all  the  obligations  of  a  common  carrier,  but  that  when 
loss  or  injury  occurs,  the  liability  depends  upon  the  exercise  of  due 
care,  skill,   and  diligence  on  the  part  of  the  railroad  company. 

"4.  That,  under  these  circumstances,  there  does  not  exist  on  the 
part  of  the  railroad  company  the  right  to  open  and  inspect  all  pack- 
ages so  carried,  especially  when  they  have  been  duly  closed  or  sealed 
up  by  their  owners  or  by  the  express  carrier. 

"5.    I  am  of  the  opinion  that  it  is  the  duty  of  every  railroad  com- 


THE   EXPRESS   CASES.  155 

pany  to  provide  such  convej'ance  b}-  special  cars,  or  otherwise,  attached 
to  their  freight  and  passenger  trains,  as  are  required  for  the  safe  and 
proper  transportation  of  this  express  matter  on  their  roads,  and  tliat 
tlie  use  of  tliese  facilities  should  be  extended  on  equal  terms  to  all  who 
are  actuall}-  and  usually  engaged  in  tlie  express  business. 

"  If  the  number  of  persons  claiming  the  right  to  engage  in  tliis  busi- 
ness at  the  same  time,  on  the  same  road,  should  become  oppressive, 
other  considerations  might  prevail ;  but  until  such  a  state  of  affairs 
is  shown  to  be  actually  in  existence  in  good  faith,  it  is  unnecessary 
to  consider  it. 

"  6.  This  express  matter  and  the  person  in  charge  of  it  should  be 
carried  by  the  railroad  company  at  fair  and  reasonable  rates  of  com- 
pensation ;  and  where  the  parties  concerned  cannot  agree  upon  what 
that  is,  it  is  a  question  for  the  courts  to  decide. 

"  7.  I  am  of  the  opinion  that  a  court  of  equity,  in  a  case  properly 
made  out,  has  the  authority'  to  compel  the  railroad  companies  to  carry 
this  express  matter,  and  to  perform  the  duties  in  that  respect  which  I 
have  already  indicated,  and  to  make  such  orders  and  decrees,  and  to 
enforce  tliem  by  the  ordinary  methods  in  use  necessar}'  to  that  end. 

"•  8.  While  1  doubt  the  right  of  the  court  to  fix  in  advance  tlie  pre- 
cise rates  wliich  the  express  companies  shall  pay  and  the  railroad 
compan\-  shall  accept,  I  have  no  doubt  of  its  right  to  compel  the 
performance  of  the  service  by  the  railroad  companj',  and  after  it  is 
rendered  to  ascertain  the  reasonable  compensation  and  compel  its 
payment. 

"  9.  To  permit  the  railway  company'  to  fix  upon  a  rate  of  com- 
pensation which  is  absolute,  and  insist  upon  the  pa3'ment  in  advance  or 
at  the  end  of  every  train,  would  be  to  enable  them  to  defeat  the  just 
rights  of  the  express  companies,  to  destroy  their  business,  and  would 
be  a  practical  denial  of  justice. 

"10.  To  avoid  this  difficult}',  I  think  that  the  court  can  assume 
that  the  rates,  or  other  mode  of  compensation  heretofore  existing  be- 
tween any  such  companies  are  prima  facie  reasonable  and  just,  and 
can  require  the  parties  to  conform  to  it  as  the  business  progresses,  with 
the  right  to  either  party  to  keep  and  present  an  account  of  the  busi- 
ness to  the  court  at  stated  intervals,  and  claim  an  addition  to,  or 
rebate  from,  the  amount  paid.  And  to  secure  the  railroad  companies 
in  any  sum  which  maj'  be  thus  found  due  them,  a  bond  from  the  ex- 
press company  may  be  required  in  advance. 

"  11.  When  no  such  arrangement  has  heretofore  been  in  existence 
it  is  competent  for  the  court  to  devise  some  mode  of  compensation  to 
be  paid  as  the  business  progresses,  with  like  power  of  final  revision  on 
evidence,  reference  to  master,  &c. 

"12.  I  am  of  opinion  that  neither  the  statutes  nor  constitutions 
of  Arkansas  or  Missouri  were  intended  to  affect  the  right  asserted  in 
these  cases  ;  »nor  do  the}'  present  an}-  obstacle  to  such  decrees  as  may 
enforce  the  right  of  the  express  companies." 


156  THE    EXPRESS    CASES. 

Three  years'  reflection  and  the  renewed  and  able  argument  in  this 
court  have  not  changed  my  belief  in  the  soundness  of  these  principles. 

That  there  may  be  slight  errors  in  the  details  of  the  decrees  of  the 
Circuit  Courts  made  to  secure  just  compensation  for  the  serA'ices  of  the 
railroad  companies  is  possiblj'  true,  but  I  have  not  discovered  them, 
and  the  attention  of  the  court  has  not  been  given  to  them  in  deciding 
this  case  ;  for  holding,  as  it  does,  that  the  complainants  were  entitled 
to  no  relief  whatever,  it  became  unnecessary  to  consider  the  details  of 
the  decrees. 

I  onl3-  desire  to  add  one  or  two  observations  in  regard  to  matters 
found  in  the  opinion  of  this  court. 

1.  The  relief  sought  in  these  cases  is  not  sought  on  the  ground  of 
usage  in  the  sense  that  a  long  course  of  dealing  with  the  public  has 
established  a  custom  in  the  nature  of  law.  Usage  is  onl}^  relied  on  as 
showing  that  the  business  itself  has  forced  its  wa}-  into  general  recog- 
nition as  one  of  such  necessity  to  the  public,  and  so  distinct  and 
marked  in  its  character,  that  it  is  entitled  to  a  consideration  differ- 
ent from  other  modes  of  transportation. 

2.  It  is  said  that  the  regulation  of  the  duties  of  carrving  by  the 
railroads,  and  of  the  compensation  they  shall  receive,  is  legislative  in 
its  character  and  not  judicial. 

As  to  the  duties  of  the  railroad  company,  if  they  are  not,  as  com- 
mon carriers,  under  legal  obligation  to  carry  express  matter  for  any 
one  engaged  in  that  business  in  the  manner  appropriate  and  usual  in 
such  business,  then  there  is  no  case  for  the  relief  sought  in  these  bills. 
But  if  they  are  so  bound  to  carry,  then  in  the  absence  of  any  legislative 
rule  fixing  their  compensation  I  maintain  that  that  compensation  is 
a  judicial  question. 

It  is,  then,  the  ordinary'  and  ever-recurring  question  on  a  qiumtuvi 
meruit.  The  railroad  compan}-  renders  the  service  which,  by  the  law 
of  its  organization,  it  is  bound  to  render.  The  express  companj'  re- 
fuses to  pay  for  this  the  price  which  the  railroad  company  demands, 
because  it  believes  it  to  be  exorbitant.  That  it  is  a  judicial  question  to 
determine  what  shall  be  paid  for  the  service  rendered,  in  the  absence 
of  an  express  contract,  seems  to  me  beyond  doubt. 

That  the  legislature  ?Kay,  in  proper  case,  fix  the  rule  or  rate  of  com- 
pensation, I  do  not  den}'.  But  until  this  is  done  the  court  must  decide 
it,  when  it  becomes  matter  of  controvers}'. 

The  opinion  of  the  court,  while  showing  its  growth  and  importance, 
places  the  entire  express  business  of  tiie  country  whoU}'  at  the  mercy 
of  the  railroad  companies,  and  suggests  no  means  by  which  they  can 
be  compelled  to  do  it.  According  to  the  principles  there  announced, 
no  railroad  company  is  bound  to  receive  or  carry  an  express  messen- 
ger or  his  packages.  If  thej'  choose  to  reject  him  or  his  packages, 
they  can  throw  all  the  business  of  the  countr}-  back  to  the  crude  condi- 
tion in  which  it  was  a  half-century  ago,  before  Harndeg  established 
his  local  express  between  the  large  Atlantic  cities  ;  for,  let  it  be  remem- 


OLD   COLONY    RAILROAD    V.    TRIPP.  157 

berecl  that  plaintiffs  have  never  refused  to  pay  the  railroad  companies 
reasonable  compensation  for  their  services,  but  those  companies  refuse 
to  carry  for  them  at  an}-  price  or  under  any  circumstances. 

I  am  very  sure  such  a  proposition  as  this  will  not  long  be  acquiesced 
in  by  the  great  commercial  interests  of  the  country  and  b}-  the  public, 
whom  both  railroad  companies  and  the  express  men  are  intended  to 
serve.  If  other  courts  should  follow  ours  in  this  doctrine,  tlie  evils  to 
ensue  will  call  for  other  relief. 

It  is  in  view  of  amelioration  of  these  great  evils  that,  in  dissenting 
here,  I  announce  the  principles  which  I  earnestly  believe  ouglit  to  con- 
trol the  actions  and  the  rights  of  these  two  great  public  services. 

Mk.  Justice  Field  dissenting. 

I  agree  with  Mr.  Justice  Miller  in  the  positions  he  has  stated, 
although  in  the  cases  just  decided  I  think  the  decrees  of  the  courts 
below  require  modification  in  several  particulars  ;  the}'  go  too  far. 
But  I  am  clear  that  railroad  companies  are  bound,  as  common  carriers, 
to  accommodate  the  public  in  the  transportation  of  goods  according  to 
its  necessities,  and  through  the  instrumentalities  oi'  in  the  mode  best 
adapted  to  promote  its  convenience.  Among  these  instrumentalities 
express  companies,  by  the  mode  in  which  their  business  is  conducted, 
are  the  most  important  and  useful. 

Mr.  Justice  Matthews  took  no  part  in  the  decision  of  these  cases.* 


OLD   COLONY   RAILROAD   v.    TRIPP. 

Supreme  Judicial  Court  of  Massachusetts,  1888. 
[147  Mass.  35 ;  \1  N.  E.  89.] 

W.  Allen,  J.,  delivered  the  opinion  of  the  court. 

Whatever  implied  license  the  defendant  may  have  had  to  enter  the 
plaintiff's  close  had  been  revoked  by  the  regulations  made  by  the 
plaintiff  for  the  management  of  its  business  and  the  use  of  its  property 
in  its  business.  The  defendant  entered  under  a  claim  of  right,  and 
can  justify  his  entry  onl}'^  by  showing  a  right  superior  to  that  of  the 
plaintiff.  The  plaintiff  has  all  the  rights  of  an  owner  in  possession, 
except  such  as  are  inconsistent  with  the  public  use  for  which  it  holds 
its  franchise;  that  is,  with  its  duties  as  a  common  carrier  of  persons 
and  merchandise.  As  concerns  the  case  at  bar,  the  plaintiff  is  obliged 
to  be  a  common  carrier  of  passengers;  it  is  its  duty  to  furnish  rea- 
sonable facilities  and  accommodations  for  the  use  of  all  persons  who 
seek  for  transportation  over  its  road.  It  provided  its  depot  for  the 
use  of  persons  who  were  transported  on  its  cars  to  or  from  the  sta- 

1  Ace.  Pfister  ;•.  R.  R.,  70  Cal.  169  ;  Louisville,  &c.  Ry.  v.  Keefer,  146  Iiid  21  :  44 
N.  E.  796;  Sargent  v.  R.  R.,  115  Mass.  416;  Exp.  Co.  v.  II.  R.,  Ill  N.  C.  463;  16  S. 
E.  393.  —  Ed. 


158  OLD    COLONY   RAILROAD    V.    TKIPP. 

tion,  and  holds  it  for  that  use;  and  it  has  no  right  to  exclude  from  it 
persons  seeking  access  to  it  for  the  use  for  which  it  was  intended  and 
is  maintained.  It  can  subject  the  use  to  rules  and  regulations;  but 
by  statute,  if  not  by  common  law,  the  regulations  must  be  such  as  to 
secure  reasonable  and  equal  use  of  the  premises  to  all  having  such 
right  to  use  them.  See  Pub.  Stat.  chap.  112,  §  188;  Fitchburg  Railroad 
V.  Gage,  12  Gray,  393;  Spofford  v.  Boston  &  Maine  Railroad,  128 
Mass.  326.  The  station  was  a  passenger  station.  Passengers  taking 
and  leaving  the  cars  at  the  station,  and  persons  setting  down  passen- 
gers or  delivering  merchandise  or  baggage  for  transportation  from 
the  station,  or  taking  up  passengers  or  receiving  merchandise  that 
had  been  transported  to  the  station,  had  a  right  to  use  the  station 
buildings  and  grounds,  superior  to  the  right  of  the  plaintiff  to  exclu- 
sive occupancy.  All  such  persons  had  business  with  the  plaintiff, 
which  it  was  bound  to  attend  to  in  the  place  and  manner  which  it  had 
provided  for  all  who  had  like  business  with  it. 

The  defendant  was  allowed  to  use  the  depot  for  any  business  that 
he  had  with  the  plaintiff.  But  he  had  no  business  to  transact  with 
the  plaintiff.  He  had  no  merchandise  or  baggage  to  deliver  to  the 
plaintiff  or  to  receive  from  it.  His  purpose  was  to  use  the  depot  as  a 
place  for  soliciting  contracts  with  incoming  passengers  for  the  trans- 
portation of  their  baggage.  The  railroad  company  may  be  under 
obligation  to  the  passenger  to  see  that  he  has  reasonable  facilities  for 
procuring  transportation  for  himself  and  his  baggage  from  the  station, 
where  his  transit  ends.  What  conveniences  shall  be  furnished  to 
passengers  within  the  station  for  that  purpose  is  a  matter  wholly  be- 
tween them  and  the  company.  The  defendant  is  a  stranger  both  to 
the  plaintiff  and  to  its  passengers,  and  can  claim  no  rights  against  the 
plaintiff  to  the  use  of  its  station,  either  in  his  own  right  or  in  the 
right  of  passengers.  The  fact  that  he  is  willing  to  assume  relations 
with  any  passenger,  which  will  give  him  relations  with  the  plaintiff 
involving  the  right  to  use  the  depot,  does  not  establish  such  rela- 
tions or  such  right;  and  the  right  of  passengers  to  be  solicited  by 
drivers  of  hacks  and  job-wagons  is  not  such  as  to  give  to  all  such 
drivers  a  right  to  occupy  the  platforms  and  depots  of  railroads. 
If  such  right  exists,  it  exists,  under  the  statute,  equally  for  all;  and 
railroad  companies  are  obliged  to  admit  to  their  depots,  not  only 
persons  having  business  there  to  deliver  or  receive  passengers  or 
merchandise,  but  all  persons  seeking  such  business,  and  to  furnish 
reasonable  and  equal  facilities  and  conveniences  for  all  such. 

The  only  case  we  have  seen  which  seems  to  lend  any  countenance 
to  the  position  that  a  railroad  company  has  no  right  to  exclude  per- 
sons from  occupying  its  depots  for  the  purpose  of  soliciting  the 
patronage  of  passengers  is  Markham  v.  Brown,  8  N.  H.  523,  in 
which  it  was  held  that  an  innholder  had  no  right  to  exclude  from  his 
inn  a  stagedriver  who  entered  it  to  solicit  guests  to  patronize  his 
stage  in  opposition  to  a  driver  of  a  rival  line  who  had  been  admitted 


OLD    COLONY    RAILROAD   V.   TRIPP.  159 

for  a  like  purpose.  It  was  said  to  rest  upon  the  right  of  the  passen- 
gers rather  than  that  of  the  driver.  However  it  may  be  with  a  guest 
at  an  inn,  we  do  not  think  that  passengers  in  a  raih'oad  depot  have 
such  possession  of  a  right  in  the  premises  as  will  give  to  carriers  of 
baggage,  soliciting  their  patronage,  an  implied  license  to  enter,  irrev- 
ocable by  the  railroad  company.  Barney  v.  Oyster  Bay  H.  Steam- 
boat Co.  67  N.  Y.  301,  and  Jencks  v.  Coleman,  2  Sumn.  221,  are 
eases  directly  in  point.  See  also  Com.  v.  Power,  7  Met.  596,  and 
Harris  v.  Stevens,  31  Vt.  1\). 

It  is  argued  that  the  statute  gave  to  the  defendant  the  same  right  to 
enter  upon  and  use  the  buildings  and  platforms  of  the  plaintiff,  which 
the  plaintiff  gave  to  Porter  &  Sons.  The  plaintiff  made  a  contract 
with  Porter  &  Sons  to  do  all  the  service  required  by  incoming  passen- 
gers, in  receiving  from  the  plaintiff,  and  delivering  in  the  town,  bag- 
gage and  merchandise  brought  by  them;  and  prohibited  the  defendant 
and  all  other  owners  of  job-wagons  from  entering  the  station  for  the 
purpose  of  soliciting  from  passengers  the  carriage  of  their  baggage 
and  merchandise,  but  allowed  them  to  enter  for  the  purpose  of  deliv- 
ering baggage  or  merchandise,  or  of  receiving  any  for  which  they  had 
orders.  Section  188  of  tlie  Pub.  Stats,  chap.  112,  is  in  these  words: 
"Every  railroad  corporation  shall  give  to  all  persons  or  companies 
reasonable  and  equal  terms,  facilities,  and  accommodations  for  the 
transportation  of  themselves,  their  agents,  and  servants,  and  of  any 
merchandise  and  other  property,  upon  its  railroad,  and  for  the  use 
of  its  depot  and  other  buildings  and  grounds,  and,  at  any  point 
where  its  railroad  connects  with  another  railroad,  reasonable  and 
equal  terms  and  facilities  of  interchange."  A  penalty  is  prescribed 
in  §  191  for  violations  of  the  statute.  The  statute,  in  providing 
that  a  railroad  corporation  shall  give  to  all  persons  equal  facilities 
for  the  use  of  its  depot,  obviously  means  a  use  of  right.  It  does 
not  intend  to  prescribe  who  shall  have  the  use  of  the  depot,  but 
to  provide  that  all  who  have  the  right  to  use  it  shall  be  furnished 
by  the  railroad  company  with  equal  conveniences.  The  statute 
applies  only  to  relations  between  railroads  as  common  carriers, 
and  their  patrons.  It  does  not  enact  that  a  license  given  by  a 
railroad  company  to  a  stranger  shall  be  a  license  to  all  the  world. 
If  a  railroad  company  allows  a  person  to  sell  refreshments  or  news- 
papers in  its  depots,  or  to  cultivate  flowers  on  its  station-grounds,  the 
statute  does  not  extend  the  same  right  to  all  persons*  If  a  railroad 
company,  for  the  convenience  of  its  passengers,  allows  a  baggage 
expressman  to  travel  in  its  cars  to  solicit  the  carriage  of  the  baggage 
of  passengers,  or  to  keep  a  stand  in  its  depot  for  receiving  orders 
from  passengers,  the  statute  does  not  require  it  to  furnish  equal 
facilities  and  conveniences  to  all  persons.  The  fact  that  the  defend- 
ant, as  the  owner  of  a  job-wagon,  is  a  common  carrier,  gives  him 
no  special  right  under  the  statute;  it  only  shows  that  it  is  possible 
for  him  to  perform  for  passengers  the  service  which  he  wishes  to 
solicit  of  them. 


160  OLD    COLONY    RAILROAD    V.    TRIPP. 

The  English  Railway  &  Canal  Traffic  Act,  17  &  18  Yict.  chap.  31, 
requires  evei-y  railway  and  canal  company  to  afford  all  reasonable 
facilities  for  traffic,  and  provides  that  "no  such  company  shall  make 
or  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in 
favor  of  any  particular  person  or  company,  or  any  particular  descrip- 
tion of  traffic,  in  any  respect  whatsoever."  Marriott  v.  London  &  S. 
W.  R.  Co.  1  C.  B.  N.  S.  499,  was  under  this  statute.  The  complaint 
was  that  the  omnibus  of  Marriott,  in  which  he  brought  passengers  to 
the  railroad,  was  excluded  by  the  railway  company  from  its  station 
grounds,  when  other  omnibuses,  which  brought  passengers,  were 
admitted.  An  injunction  was  ordered.  Beadell  v.  Eastern  Counties 
R.  Co.  2  C.  B.  N.  S.  509,  was  a  complaint,  under  the  statute,  that 
the  railway  company  refused  to  allow  the  complainant  to  ply  for 
passengers  at  its  station,  it  having  granted  the  exclusive  right  of 
taking  up  passengers  within  the  station,  to  one  Clark.  The  respond- 
ent allowed  the  complainant's  cabs  to  enter  the  station  for  the  purpose 
of  putting  down  passengers,  and  then  required  him  to  leave  the  yard. 
An  injunction  was  refused.  One  ground  on  which  the  case  was  dis- 
tinguished from  Marriott's  was  that  the  complainant  was  allowed  to 
enter  the  yard  to  set  down  passengers,  and  was  onl}^  prohibited  from 
remaining  to  ply  for  passengers.  See  also  Painter  r.  London,  B.  & 
S.  C.  R.^Co.  2  C.  B.  N.  S.  702;  Barker  v.  Midland  R.  Co.  18  C.  B. 
46.  Besides  Marriott's  Case,  supra,  Palmer  v.  London,  B.  &  S.  C. 
R.  Co.  L.  R.  6  C.  P.  194,  and  Parkinson  v.  Great  Western  R.  Co. 
L.  R.  6  C.  P.  554,  are  cases  in  which  injunctions  were  granted  under 
the  statute:  in  the  former  case,  for  refusing  to  admit  vans  containing 
goods  to  the  station-yard  for  delivery  to  the  railway  company  for 
transportation  by  it;  in  the  latter  case,  for  refusing  to  deliver  at 
the  station,  to  a  carrier  authorized  to  receive  them,  goods  which  liad 
been  transported  on  the  railroad. 

We  have  not  been  referred  to  any  decision  or  dictum,  in  England 
or  in  this  country,  that  a  common  carrier  of  passengers  and  their 
baggage  to  and  from  a  railroad  station  has  any  right,  without  the 
consent  of  the  railroad  company,  to  use  the  grounds,  buildings,  and 
platforms  of  the  station  for  the  purpose  of  soliciting  the  patronage 
of  passengers;  or  that  a  regulation  of  the  company  which  allows  such 
use  by  particular  persons,  and  denies  it  to  others,  violates  any  right 
of  the  latter.  Cases  at  common  law  or  under  statutes  to  determine 
whether  railroad  companies  in  particular  instances  gave  equal  terms 
and  facilities  to  different  parties  to  whom  they  furnished  transporta- 
tion, and  with  whom  they  dealt  as  common  carriers,  have  no  bearing 
on  the  case  at  bar.  The  defendant,  in  his  business  of  solicitor  of  the 
patronage  of  passengers,  held  no  relations  with  the  plaintiff  as  a  com- 
mon carrier,  and  had  no  right  to  use  its  station-grounds  and  buildings. 

A  majority  of  the  court  are  of  the  opinion  that  there  should  be  — 

Judgvient  on  the  verdict} 

1  Ace.  Brown  c.  N.  Y.  C.  &  H.  R.  R.  R.,  27  N.  Y.  Sup.  69.  —Ed. 


OLD    COLONY   RAILROAD    V.   TRIPP.  161 

Field,  J."^  The  Chief  Justice,  Mr.  Justice  Devens,  aud  myself 
think  that  our  statutes  should  receive  a  different  construction  from 
that  given  to  them  by  a  majority  of  the  court.   .   .   . 

The  provision  that  every  railroad  corporation  shall  give  to  all  per- 
sons or  companies  reasonable  and  equal  terms,  facilities,  and  accom- 
modations for  the  use  of  the  depot  and  other  buildings  and  grounds, 
must  include  the  use  of  the  depot  and  other  buildings  and  grounds  for 
receiving  passengers  and  merchandise  from  a  railroad  at  the  terminus 
where  the  transportation  on  the  railroad  ends,  as  well  as  for  deliver- 
ing passengers  and  merchandise  to  a  railroad  at  the  terminus  where 
such  transportation  begins.  As  the  last  clause  of  the  section  makes 
provision  for  carriers  connecting  by  railroad,  we  think  that  the  pre- 
ceding clause  was  intended  to  make  provision  for  other  connecting 
carriers,  and  to  include  public  or  common  carriers  as  well  as  private 
carriers  actually  employed  by  passengers  or  by  the  owners  or  con- 
signees of  merchandise.  Stages  and  expresses  are  the  only  common 
carriers  of  passengers  and  of  merchandise  to  and  from  many  places  in 
the  Commonwealth,  and,  in  connection  with  railroads,  often  form  a 
continuous  line  of  transportation.  The  statute,  we  think,  was  in- 
tended to  prevent  unjust  discrimination  by  a  railroad  corporation  be- 
tween common  carriers  connected  with  it  in  any  manner,  and  to 
require  that  the  railroad  corporation  should  furnish  to  such  carriers 
reasonable  and  equal  terms,  facilities,  and  accommodations  in  the  use 
of  its  depot  and  other  buildings  and  grounds  for  the  interchange  af 
traffic. 

A  railroad  corporation  can  make  reasonable  rules  and  regulations 
concerning  the  use  of  its  depot  and  other  buildings  and  grounds,  and 
can  exclude  all  persons  therefrom  who  have  no  business  Avith  the 
railroad,  and  it  can  probably  prohibit  all  persons  from  soliciting 
business  for  themselves  on  its  premises.  Whatever  may  be  its  right 
to  exclude  all  common  carriers  of  passengers  or  of  merchandise  from 
its  depot  and  grounds,  who  have  not  an  order  to  enter,  given  by 
persons  who  are,  or  who  intend  to  become,  passengers,  or  who  own 
or  are  entitled  to  the  possession  of  merchandise  which  has  been  or  is 
to  be  transported,  it  cannot  arbitrarily  admit  to  its  depot  and  grounds 
one  common  carrier  and  exclude  all  others.  The  effect  of  such  a 
regulation  would  be  to  enable  a  railroad  corporation  largely  to  con- 
trol the  transportation  of  passengers  and  merchandise  bej'ond  its  own 
line  and  to  establish  a  monopoly  not  granted  by  its  charter  which 
might  be  solely  for  its  own  benefit  and  not  for  the  benefit  of  the 
public.  Such  a  regulation  does  not  give  "to  all  persons  or  companies 
reasonable  and  equal  terms,  facilities,  and  accommodations  .  .  .  for 
the  use  of  its  depot  and  other  buildings  and  grounds,"  in  the  trans- 
portation of  persons  and  property.  See  Parkinson  v.  Great  Western 
R.  Co.,  L.  R.  6  C.  P.  5o4;  Palmer  v.  London,  B.  &  S.  C.  R.  Co.  Id. 

1  Part  of  this  opinion  is  omitted.  —  Ed. 
11 


162  GRISWOLD   V.    WEBB. 

194;  New  England  Express  Co.  v.  Maine  Central  R.  Co.  57  Me. 
188.  .   .  . 

It  is  undoubtedly  a  convenience  to  passengers  on  a  railroad,  that 
common  carriers  of  passengers,  or  of  baggage  and  other  merchan- 
dise, should  be  in  waiting  on  the  arrival  of  trains  at  a  station,  al- 
though no  order  requiring  the  attendance  of  such  carriers  has  been 
previously  given. 

While  the  statute  requiring  a  railroad  corporation  to  give  to  all 
persons  and  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  use  of  its  depot  and  other  buildings  and 
grounds  must,  from  the  nature  of  the  subject,  be  so  construed  as  to 
permit  the  corporation  to  make  such  reasonable  regulations  as  are 
necessary  to  enable  it  to  perform,  without  inconvenience,  its  duties 
as  a  common  carrier,  and  such  as  the  size  and  condition  of  its  depot 
and  other  buildings  and  grounds  require,  yet  the  facts  stated  in  the  re- 
port cannot  be  held  sufficient  to  warrant  the  plaintiff  in  admitting  one 
company  of  expressmen  to,  and  in  excluding  all  others  from,  the  ad- 
vantages of  bringing  express  wagons  within  its  grounds,  and  of 
accepting  or  of  soliciting  employment  as  a  common  carrier  of  bag- 
gage from  the  passengers  arriving  at  its  depot.  The  report  does  not 
show  that  any  inconvenience  to  the  railroad  company,  or  to  the  public 
using  the  railroad,  was  occasioned  by  the  defendant  entering  the 
grounds  of  the  company  for  the  purpose  of  soliciting  employment  as 
a  common  carrier  of  baggage.  Upon  the  facts,  as  they  appear  in 
the  report,  it  cannot  be  said  that,  within  any  reasonable  construction 
of  the  statute,  reasonable  and  equal  facilities  were  granted  to  the  de- 
fendant and  to  Porter  &  Sons ;  or  that  any  necessity  existed  for  giving 
a  preference  to  the  latter. 


GRISWOLD   V.    WEBB. 
Supreme  Court  of  Rhode  Island,  1889. 

[16  R.  I.  649:  19  Atl.  143.] 

Stiness,  J.  The  plaintiff  is  owner  of  Commercial  Wharf,  in  New- 
port, a  part  of  which  is  leased  to  the  Newport  &  Wickford  Railroad 
&  Steam-Boat  Company  as  a  terminus.  To  preserve  order  upon 
the  wharf,  stands  are  let  for  hackney  carriages,  and  the  following 
rules  are  prescribed  for  its  use:  "Rules  for  Hackmen  and  Others. 
(1)  Drivers  of  hackney  carriages  shall  remain  on  or  near  their 
carriages,  except  when  carrying  baggage  to  or  from  them.  (2)  No 
one  shall  occupy  a  hack-stand  or  express-stand  except  the  licensee 
or  his  employes.  (3)  No  hackney  carriage  or  express  wagon  shall 
stand  on  the  space  to  the  eastward  of  the  restaurant  building,  or  on 
the  road-ways,  except  on  licensed  hack-stands,  even  though  ordered 
.,in  .advance  by  a  passenger."     East  of  the  restaurant  building  is  a 


GRISWOLD    V.    WEBB.  163 

plank  walk  for  passengers,  and  east  of  the  walk  a  space  is  reserved 
for  private  carriages.  The  rest  of  the  wharf  is  used  for  sidewalks, 
road-ways,  and  buildings.  The  defendant,  driver  of  a  hackney  car- 
riage in  Newport,  went  to  the  wharf,  on  the  day  in  question,  for  a 
lady  who  was  to  arrive  in  the  boat,  as  he  had  been  ordered  to  do  by 
the  passenger,  or  some  one  in  her  behalf.  He  backed  his  hack  as 
near  as  he  could  to  the  space  reserved  for  private  carriages,  when  he 
was  ordered  to  leave  the  wharf  by  the  superintendent,  upon  the  ground 
that  he  had  no  right  to  be  there,  having  no  license  from  the  owner. 
The  plaintiff  claimed  that  the  wheels  of  the  defendant's  carriage  were 
backed  on  to  the  plank  walk,  but,  upon  all  the  testimony,  we  are  not 
satisfied  this  was  so,  or,  if  so,  that  it  was  anything  more  than  acci- 
dental. At  any  rate,  the  order  to  leave  the  wharf  was  not  put  upon 
this  ground,  but  because  he  had  no  right  there.  Upon  receiving  the 
order  to  leave,  the  defendant  stated,  both  to  the  plaintiff  and  to  the 
superintendent  of  the  wharf,  that  he  had  been  ordered  there  for  a 
passenger,  and  he  refused  to  leave.  The  plaintiff  then  called  a 
policeman,  who  moved  the  carriage  to  another  place  in  the  road-wa}', 
where  the  defendant  remained  until  the  boat  arrived,  when  he  took 
his  passenger  and  drove  away.  The  passenger  was  an  infirm  lady, 
who  had  been  accustomed  to  ride  with  the  defendant,  and  one  who 
was  obliged  to  use  a  stool,  which  he  had  with  him,  to  aid  her  in 
getting  into  the  carriage.  The  plaintiff  sues  in  trespass,  and  the 
defendant  justifies  under  a  right  as  servant  of  the  passenger.  The 
question  is  whether  the  defendant  had  the  right  to  enter  and  remain 
upon  the  wharf  to  take  the  passenger,  notwithstanding  the  rules  and 
the  order  to  leave.  We  understand  the  rules  to  forbid  an  unlicensed 
hackney  carriage  to  stand  upon  the  wharf  at  all ;  for  none  are  allowed 
to  stand  in  the  road-ways,  except  on  the  licensed  stands,  and  none  are 
allowed  to  occupy  a  stand  without  a  license.  But  the  wharf  is  leased 
to  a  common  carrier  of  passengers,  with  a  provision  that  the  space 
east  of  the  restaurant  shall  be  reserved  for  the  use  of  private  car- 
riages of  passengers  arriving  at  the  wharf. 

The  question  of  right,  therefore,  is  the  same  as  it  would  be  between 
passengers  and  a  company  which  owns  its  terminus.  While  such 
ownership  carries  with  it  a  right  of  control,  in  most  respects  the  same 
as  in  private  property,  a  railroad  station  or  steam-boat  wharf  is,  to 
some  extent,  a  public  place.  The  public  have  the  right  to  come  and 
go  tliere  for  the  purpose  of  travel;  for  taking  and  leaving  passengers; 
and  for  other  matters  growing  out  of  the  business  of  the  company  as 
a  common  carrier.  But  the  company  has  the  right  to  say  that  no 
business  of  any  other  character  shall  be  carried  on  within  the  limits 
of  its  property.  It  has  the  right  to  say  that  no  one  shall  come  there 
to  solicit  trade,  simply  because  it  may  be  convenient  for  travellers, 
and  so  to  say  that  none,  except  those  whom  it  permits,  shall  solicit  in 
the  business  of  hacking  or  expressing.  When  notice  of  such  prohi- 
bition has  been  given,  the  license  which  otherwise  might  be  implied 


164  GRISWOLD    V.   WEBB. 

is  at  an  end,  and  it  is  the  duty  of  persons  engaged  in  any  such  busi- 
ness to  heed  the  notice  and  to  retire  from  the  premises.  Barney  v. 
Steam-Boat  Co.,  67  N.  Y.  301;  Com.  v.  Power,  7  Met.  596. 

But,  while  this  is  so,  the  company  cannot  deprive  a  passenger  of 
the  ordinary  rights  and  privileges  of  a  traveller,  among  which  is  the 
privilege  of  being  transported  from  the  terminus  in  a  reasonably  con- 
venient and  usual  way.  A  company  cannot  compel  a  passenger  to 
take  one  of  certain  carriages,  or  none  at  all ;  nor  impose  unreasonable 
res'trictions,  which  will  amount  to  that.  If  a  passenger  orders  a  car- 
riage to  take  him  from  the  terminus,  such  carriage  is,  pro  hac  vice, 
a  private  carriage ;  not  in  the  sense  that  the  passenger  has  a  special 
property  in  it,  so  as  to  be  liable  for  the  driver's  negligence,  but  in 
the  sense  that  it  is  not  "standing  for  hire."  Masterson  v.  Short,  33 
How.  Pr.  481.  The  driver  is  not  engaged  in  his  vocation  of  solicit- 
ing patronage,  but  is  waiting  to  take  one  with  whom  a  contract  has 
already  been  made.  No  question  is  made  that  a  passenger  may  have 
his  own  carriage  enter  the  premises  of  a  carrier  to  take  him  away; 
but  to  say  that  one  who  is  not  so  fortunate  as  to  own  a  carriage  shall 
not  be  allowed  to  call  the  one  he  wants,  because  it  is  a  hackney  car- 
riage, would  be  a  discrimination  intolerable  in  this  country.  Yet  this 
is  really  the  plaintiff's  claim.  Every  passenger  has  the  right,  ujDon 
the  premises  of  the  carrier,  to  reasonable  and  usual  facilities  for 
arrival  and  departure;  and,  so  far  as  this  includes  the  right  to  be 
taken  to  and  from  a  station  or  wharf,  it  is  immaterial  whether  he  goes 
in  a  private  or  a  hired  carriage.  Decisions  upon  this  question  have 
not  been  numerous,  and  we  know  of  but  one  directly  in  point,  although 
in  others  there  are  dicta  which  indicate  what  is  understood  to  be  the 
law.  Summitt  v.  State,  8  Lea,  413,  was  a  conviction  of  the  defend- 
ant, a  watchman  in  a  depot,  for  assault  in  ejecting  a  hackman  there- 
from. The  company  had  forbidden  hackmen  to  enter  the  building. 
Notwithstanding  this  rule,  the  right  of  a  hackman  to  go  into  a  part  of 
the  depot  to  obtain  the  baggage  of  a  passenger,  whose  check  he  had, 
was  not  controverted.  The  prosecutor,  having  the  check  of  a  passen- 
ger, was  in  another  part  of  the  depot;  but  it  was  held  that  the  defend- 
ant was  not  justified  in  ejecting  him  altogether  from  the  station,  and 
the  conviction  was  sustained.  Tobin  v.  Railroad  Co.,  59  Me.  183, 
was  an  action  for  damages  by  a  hackman  who  was  injured  by  step- 
ping on  a  defective  platform  when  leaving  a  passenger  at  the  station. 
The  court  say:  "The  hackman,  conveying  passengers  to  a  railroad 
depot  for  transportation,  and  aiding  them  to  alight  upon  the  platform 
of  the  corporation,  is  as  rightfully  upon  the  same  as  the  passengers 
alighting."  In  this  case  it  was  not  claimed  that  any  rules  had  been 
violated.  The  recent  case  of  Railroad  Co.  r.  Tripp,  147  Mass.  35, 
was  an  action  of  trespass  against  an  expressman  who  solicited  patron- 
age in  the  plaintiff's  station,  contrary  to  its  rules.  W.  Allex,  J., 
says:  ''Passengers  taking  and  leaving  the  cars  at  the  station,  and 
persons  setting  down  passengers  or  delivering  merchandise  or  bag- 


GRISWOLD   V.   WEBB.  165 

gage  for  transportation  from  the  station,  or  taking  up  passengers  or 
receiving  merchandise  that  had  been  transported  to  the  station,  had  a 
right  to  use  the  station  buildings  and  grounds,  superior  to  the  right 
of  the  plaintiff  to  exclusive  occupancy.  All  such  persons  had  busi- 
ness with  the  plaintiff,  which  it  was  bound  to  attend  to  in  the  ))lace 
and  manner  which  it  had  provided  for  all  who  had  like  business  with 
it."  A  statute  of  Massachusetts  prescribes  that  railroad  corporations 
shall  give  to  all  persons  equal  facilities  for  the  use  of  its  depot. 
The  court  held  that  this  statute  applied  only  to  the  relations  between 
common  carriers  and  their  patrons,  or  those  who  had  the  right  to  use 
the  station.  It  did  not  give  the  defendant  the  right  to  go  there  to 
solicit  business  because  Another  had  the  right.  See,  also,  Harris  r. 
Stevens,  ;^1  Vt.  79.  In  Markham  v.  Brown,  8  N.  H.  523,  an  action 
of  trespass,  brought  by  an  innkeeper  against  a  stage  driver,  the 
court  say  the  defendant  had  clearly  a  right  "to  go  to  the  plaintiff's 
inn  with  travellers,  and  he  might  of  course  lawfully  enter  it  for  the 
purpose  of  leaving  their  baggage  and  receiving  his  fare."  The  case 
most  nearly  in  support  of  the  plaintiff's  contention  of  those  we  have 
seen  is  Barker  v.  Railroad  Co.,  18  C.  B.  46,  where  it  was  held  that  an 
omnibus  proprietor,  cari'ying  passengers  to  and  from  a  station,  could 
not  maintain  an  action  for  a  refusal  to  allow  him  to  drive  his  vehicle 
into  the  station  yard.  As  the  proprietor  was  not  using  or  seeking  to 
nse  the  railway,  it  was  considered  that  the  company  owed  him  no 
duty.  Jervis,  C.  J.,  said  a  passenger  would,  no  doubt,  have  a  right 
of  action,  if  unduly  obstructed,  but  a  violation  of  duty  to  him  would 
not  give  an  action  to  the  plaintiff.  It  is  to  be  observed  that  the 
recent  English  cases  are  mainly  controlled  by  statute  (17  &  18  Vict. 
c.  31),  to  which  the  Massachusetts  statute  is  similar.  They  relate 
chiefly  to  the  question  w-hether  a  prohibition  to  one,  to  ply  for  passen- 
gers within  a  station,  when  the  same  right  is  granted  to  another,  is 
an  undue  preference,  under  the  statute.  It  is  generally  held  that  it 
is  not.  See  In  re  Beadell,  2  C.  B.  (N.  S.)  509;  In  re  Painter,  Id. 
702;  Hole  v.  Digby,  27  Wkly.  Rep.  881.  In  the  latter  case  it  seems 
to  be  conceded  that  one  going,  bo7i(i  _fide,  to  meet  a  passenger,  would 
not  be  guilty  of  trespass.  In  re  Marriott,  1  C.  B.  (N.  S.)  499,  the 
defendant  company  was  ordered  to  admit  the  complainant's  omnibus 
into  the  station  to  receive  and  set  down  passengers  and  goods,  as 
other  public  vehicles  were  admitted.  Upon  the  question  before  us, 
we  do  not  think  these  cases  are  in  conflict  with  the  views  we  have 
above  expressed.  The  case  at  bar  differs  from  Barker  r.  Railroad 
Co.,  supra,  in  this:  that  here  the  hackney  driver  is  not  plaintiff, 
seeking  to  recover  damages  for  the  revocation  of  a  license  to  go  upon 
the  wharf,  or  for  a  breach  of  duty  to  another,  but  the  defendant 
against  an  alleged  tresi)ass,  who  relied  upon  his  right  as  servant  of 
the  other  to  justify  his  being  there.  "VVe  think  the  justification  is 
sufficient.  It  is  substantially  given  by  the  terms  of  the  lease  to  the 
steam -boat  company.     This  does  not  deprive  the  owner  of  the  general 


166  MONTANA   UNION   EY.    V.    LANGLOIS. 

control  of  his  wharf,  nor  interfere  with  his  reasonable  rules  for  its 
management.  It  simply  secures  to  a  passenger  the  common  privilege 
of  a  passenger,  and  enables  the  hackney  driver  to  shield  himself  from 
an  apparent  violation  of  the  rules  only  when  he  is  acting,  bo7ia  fide, 
as  the  servant  of  such  passenger.  This  qualification  guards  the 
owner  from  an  incursion  of  unlicensed  drivers  under  a  mere  pretense 
of  serving  passengers,  and  also  confines  the  right  of  soliciting  busi- 
ness on  his  premises  to  those  whom  he  may  permit.  We  give  judg- 
ment for  the  defendant  for  his  costs. 


MONTANA   UNION   RY.    v.    LANGLOIS. 

Supreme  Court  of  Montana,  1890. 

[9  Mont.  419  :  24  Pac.  209.] 

Harwood,  J.^  The  whole  question  involved  in  this  controversy  is 
compassed  by  the  proposition,  on  the  part  of  the  plaintiff,  "that  it  is 
the  owner  of  said  grounds,  depot  buildings,  and  platform,  and  that 
it  may  regulate  the  use  of  said  platform  as  it  desires,  providing  the 
travelling  public  is  not  inconvenienced;  that  it  may,  if  it  desij-es, 
engage  in  carrying  passengers  in  hacks  to  and  from  its  trains;  that, 
if  it  was  so  engaged,  it  would  have  the  right  to  its  own  property  for 
such  purpose ;  that,  if  it  has  such  rights,  it  can  as  well  employ  Lovell 
Brothers  with  hacks  to  do  such  service  as  to  own  the  hacks;  that,  if 
the  plaintiff  has  the  right  to  its  platform,  it  has  the  right  to  sell  that 
right  to  Lovells  for  a  valuable  consideration,"  and  should  be  protected 
in  the  exercise  and  benefits  of  these  rights.  These  propositions  are 
controverted  by  defendants  in  so  far  as  they  affirm  the  right  of  the 
plaintiff  to  grant  exclusive  use  of  a  portion  of  said  platform  to  one 
party  to  approach  and  occupy  the  same,  to  convej  passengers  thereto, 
and  receive  passengers  therefrom,  and  exclude  all  others  from  so 
doing.  No  complaint  is  made  that  any  reasonable  rule  or  regulation 
made  by  plaintiff  for  the  government  of  its  depot  platform  or  grounds 
has  been  violated,  or  that  defendants  have  committed  any  act  which 
interferes  with  the  transaction  of  plaintiff's  business,  except  in  so 
far  as  defendants  interfere  with  the  exclusive  use  of  said  portion  of 
plaintiff's  platform  granted  to  Lovell  Bros.  In  respect  to  the  delivery 
of  the  United  States  mail  matter  at  said  platform,  and  transportation 
thereof  to  the  United  States  post-office  in  the  city  of  Butte,  it  is 
admitted  that  ample  space  for  that  purpose  is  left  to  the  use  of  the 
company  and  its  employes,  according  to  its  requirements.  The 
question  of  handling  the  United  States  mail  matter,  it  seems,  is  inci- 
dentally brought  into  this  controversy;  the  transfer  of  this  mail 
matter  for  the  plaintiff  being  principally  the  consideration  performed 

^  Part  of  the  statement  of  facts  contained  in  the  opinion  of  the  court  is  omitted. 
—  Ed. 


MONTANA   UNION   RY.   f.   LANGLOIS.  .167 

by  Lovell  Bros,  for  the  grant  of  exclusive  use  of  the  designated  por- 
tions of  the  railway  platform  to  them,  at  which  place  Lovell  Bros. 
may  ply  for  passengers  to  patronize  their  hacks  and  carriages. 

If  the  plaintiff  has  the  right  to  grant  the  exclusive  use  of  its  plat- 
form in  the  respect  mentioned,  it  may  be  granted  for  any  other  valid 
consideration  as  well.  It  is  not  denied  that  a  railway  company  may 
make  and  enforce  all  reasonable  rules  and  regulations  necessary  to^ 
govern  persons  coming  to  its  station  buildings,  platform,  and 
grounds.  It  is  highly  proper  and  beneficial  to  all  concerned  that  this 
be  done.  The  law  recognizes  this  right  on  the  part  of  the  common 
carrier,  and  the  courts  enforce  it.  Upon  this  point  the  learned 
counsel  for  appellant  cites  many  authorities,  with  which  this  court 
agrees ;  but  we  conceive  that  the  matter  under  consideration  is  a  far 
different  proposition.  The  grant  of  a  special  privilege  to  Lovell 
Bros,  to  use  the  specified  portion  of  plaintift''s  platform  at  said  station, 
and  the  exclusion  of  all  from  approaching  thereto,  to  land  or  receive 
passengers,  is  not  a  rule  or  regulation,  in  the  common  acceptation  of 
these  terms  as  used  in  the  legal  authorities,  and  applied  to  this  sub- 
ject. We  therefore  find  in  the  numerous  and  valuable  authorities 
cited  on  that  theory  only  general  aid  in  solving  this  controversy.  A 
general  rule  or  regulation,  as  applied  to  the  government  of  the  con- 
duct of  persons,  or  of  a  class  of  persons,  contemplates  uniformity, 
and  not  discrimination,  in  its  requirements.  This  controversy  must 
be  solved  by  a  consideration  of  the  mutual  rights  of  the  appellant  as 
a  common  carrier  and  its  passengers.  All  passengers  in  common 
are  entitled  to  equal  opportunities  and  conveniences  of  place  to 
approach  and  depart  from  plaintiff's  trains.  At  the  station  men- 
tioned the  railway  company  either  commences  or  terminates  its 
engagement  to  transport  its  passengers  to  and  from  said  station,  as 
the  case  may  be.  The  contract  of  the  railway  company  does  not 
require  that  it  either  furnish  conveyance  to  bring  the  passenger  to 
said  platform,  or  transport  him  therefrom.  The  passenger  may 
employ  whom  he  desires  to  bring  him  there  for  the  departure  on 
plaintiff's  trains,  or  to  meet  and  receive  him  on  his  arrival  at  said 
station.  But  the  plaintiff"  contends  that  it  may  grant  the  exclusive 
use  of  a  large  portion  of  its  platform  to  one  party,  at  which  to  land 
passengers  for  departure  on  said  trains,  or  to  receive  passengers  from 
said  trains,  and,  if  the  passenger  is  willing  to  contract  with  this  one 
party  for  transportation  thereto  or  therefrom,  such  passenger  may 
have  the  convenience  of  landing  or  departing  from  that  portion  of 
said  platform;  otherwise,  he  must  laud  50  feet  away  from  said  plat- 
form, or  go  to  another  portion  of  the  platform,  incumbered  with 
express  and  baggage  wagons  and  the  handling  of  freight  and  baggage 
matter.  Suppose  a  passenger  travels  every  day  from  this  station,  and 
returns,  he  is  entitled  to  the  same  convenience  and  facilities  for 
approaching  and  leaving  this  depot  as  other  passengers.  If  he  con- 
tracts with  another  than  Lovell  Bros.,  or  the  party  to  whom  the  rail- 


168  MONTANA   UNION    BY.    V.   LANGLOIS. 

way  company  has  granted  the  exclusive  use  of  said  portion  of  the 
platform  to  bring  him  there,  and  be  there  to  receive  him  on  his  return, 
he  uiust  alight  from  his  carriage,  or  be  received  by  it  50  feet  away 
from  said  platform,  or  be  lauded  where  the  express  and  baggage 
matter  is  handled;  while  the  passenger  who  employs  Lovell  Bros, 
for  the  same  purpose  may  land  at  and  depart  from  this  convenient 
portion  of  said  platform.  Or  if  a  party  desired  to  use  his  own  car- 
riage to  bring  him  to  said  station,  or  receive  him  on  his  return,  it 
seems  the  same  conditions  would  prevail. 

Certainly,  if  the  plaintiff  has  the  right  to  grant  the  exclusive  use 
of  said  platform  to  one,  and  exclude  the  public  hackmen  therefrom, 
it  would  apparently  have  the  right  to  exclude  the  private  hackmen 
therefrom.  To  the  strong  it  would  perhaps  make  no  difference,  as 
a  matter  of  convenience,  just  where  they  were  landed  at  or  received 
from  said  station;  but  to  the  feeble  and  the  helpless,  and  those 
incumbered  with  their  care,  it  would  be  a  matter  of  great  discom- 
fiture and  inconvenience.  Still  other  conditions  which  directly  result 
from  the  position  demanded  by  plaintiff,  and  which  militate  against 
the  equal  rights  of  passengers,  may  be  suggested.  Suppose  all  other 
hackmen  who  desire  to  compete  with  Lovell  Bros,  for  the  carrying 
passengers  to  and  from  this  depot  will  perform  the  service  for  half 
the  sum  charged  by  Lovell  Bros.,  are  the  passengers  entitled  to  the 
benefit  of  this  competition?  Has  not  the  passenger  the  right  to  call 
these  other  hackmen  to  his  service,  and,  if  he  does  call  them,  has  he 
not  a  right  to  have  such  other  hackmeu  approach  the  platform  at  the 
same  place,  or  at  least  have  an  equal  and  common  chance  to  approach 
at  this  same  convenient  place,  as  his  co-passenger  who  employs 
Lovell  Bros.  ?  If  any  of  the  passengers  do  accept  these  better  terms, 
they  must  suffer  the  discrimination  of  being  denied  a  landing  at  that 
portion  of  tlie  platform  granted  exclusively  to  Lovell  Bros.,  or, 
when  the}'  alight  from  plaintiff's  trains,  they  either  go  50  feet  away 
from  that  portion  of  said  platform,  or  to  the  east  side  of  the  depot 
building,  for  transportation  with  a  hackman  at  the  less  rate.  It  is  a 
rule  of  universal  application  that  the  public  is  entitled  to  whatever 
competition  may  grow  out  of  the  public  demands,  on  the  one  hand, 
and  the  contest  of  others  to  supply  such  demands,  and  receive  the  com- 
pensation therefor.  Are  not  the  conditions  here  sought  to  be  so  con- 
trolled by  the  plaintiff  as  to  stifle  the  natural  development  of  such 
competition?  It  is  alleged  by  the  plaintiff  that  by  its  arrangement 
with  Lovell  Bros,  the  latter  engage  to  have  a  sufficient  number  of 
hacks  and  carriages,  at  the  arrival  of  all  passenger  trains,  to  trans- 
port such  passengers  to  the  city  of  Butte  from  said  station.  But  the 
plaintiff  does  not  contract  to  carrj^  its  passengers  destined  to  said 
station  beyond  that  point,  nor  to  see  that  such  passengers  are  pro- 
vided with  transportation  beyond  that  point.  The  plaintiff"  simply 
undertakes  to  reap  a  benefit  from  the  necessity  of  its  passengers,  to 
procure  on  their   own  account,  and  from  such  party,   and    on    such 


MONTANA   UNION   RY.    V.   LANGLOIS.  169 

terms  as  they  may,  transportation  to  the  city.  This  benefit  is  sought 
to  be  derived  by  the  plaintiff  from  a  grant  of  the  most  favorable 
portion  of  the  platform,  where  plaintiff  sees  fit  to  laud  its  passen- 
gers, exclusively  to  one  party  to  solicit  their  patronage,  and,  for  this 
grant,  such  party  aids  plaintiff  in  carrying  out  its  contract  to  deliver 
the  United  States  mails  at  the  post-otlice  in  the  city  of  Butte.  On 
principle  we  cannot  reconcile  these  conditions  which  are  denuinded 
by  appellant  with  the  rule  that  all  who  come  to  take  passage  or  who 
arrive  at  the  station  of  a  common  carrier  are  entitled  to  equal  con- 
venience and  opportunity  to  approach  said  station  or  depart  there- 
from. It  seems  to  us  that  the  direct  effect  of  appellant's  position  is 
to  say  to  its  passengers,  "You  must  employ  Lovell  Eros.,  or  suffer 
certain  inconveniences  in  taking  passage  with  another." 

These  observations  are  not  to  be  confounded  with  the  question  as 
to  whether  the  railway  company  may  not  exclude  all  hackmen  from 
its  station  buildings,  or  even  from  the  platform,  or  set  bounds  on  its 
grounds  beyond  which  they  should  not  come,  as  the  exigencies  of  the 
situation  and  business  might  reasonably  require,  or  to  make  and 
enforce  any  other  reasonable  rule  as  to  the  government  of  its  depot 
buildings  and  grounds.  It  is  not  a  general  question  of  that  character 
which  here  engages  the  consideration  of  the  court.  The  constitution 
of  this  state  (article  15,  §  7)  provides  that  "no  discrimination  in 
charges  or  facilities  for  transportation  of  freight  or  passengers  of 
the  same  class  shall  be  made  by  any  railroad  or  transportation  or 
express  company  between  persons  or  places  within  the  state." 

The  reported  cases,  involving  like  or  similar  facts  as  the  one  at 
bar,  which  have  come  to  our  attention,  are  few  in  number.  The 
recent  case  of  Railroad  Co.  v.  Tripp,  147  Mass.  35,  is  the  nearest  in 
point.  The  facts  involved  in  that  case  are  quite  similar  to  the  case 
at  bar,  although  it  appears  from  the  statement  of  facts  and  the 
opinion  that  while  exclusive  grant  was  made  by  the  railroad  company 
to  Porter  &  Sous  to  come  upon  the  depot  premises  to  solicit  passen- 
gers and  baggage  for  transportation,  and  all  other  hackmen  were 
forbidden  to  come  there  for  that  purpose,  still  all  hackmen  were 
allowed  equal  privileges  to  come  to  the  station  to  deliver  passengers 
and  baggage,  and  to  receive  such  as  they  had  a  previous  order  for. 
While  we  concur  in  the  general  principles  of  law  applicable  to  common 
carriers  announced  by  the  majority  of  the  nearly  evenly  divided  court 
in  that  case  we  cannot  subscribe  to  the  conclusions  drawn  b}'  the 
majority.  On  the  contrary,  after  a  careful  consideration  of  that  case, 
we  are  inclined  to  adopt  the  reasoning  and  conclusion  of  the  dissent- 
ing opinion  delivered  by  the  three  minority  judges.  The  majority 
opinion  in  that  case  very  clearl}'  and  forcibl}'  states  the  general  prin- 
ciples of  law  governing  common  carriers  applicable  to  the  present 
consideration.  The  court  says:  "The  plaintilT  is  obliged  to  be  a 
common  carrier  of  passengers.  It  is  its  duty  to  furnish  reasonable 
facilities  and  accommodations  for  the  use  of  all  persons  who  seek 
for  transportation  over  its  road.     It  provides  its  depot  fo-  the  usi^  '^ 


170  MONTANA   UNION    BY.    V.   LANGLOIS. 

persons  who  were  transported  on  its  cars,  to  or  from  the  station,  and 
holds  it  for  that  use;  and  it  has  no  right  to  exclude  from  it  persons 
seeking  access  to  it  for  the  use  for  which  it  was  intended  and  is 
maintained.  It  can  subject  the  use  to  rules  and  regulations ;  but  by 
statute,  if  not  by  common  law,  the  regulations  must  be  such  as 
secure  reasonable  and  equal  use  of  the  premises  to  all  having  such 
right  to  use  them."  We  do  not  find  it  consonant  with  reason,  based 
upon  those  general  propositions,  to  draw  the  conclusion  that  the 
railroad  company  may  bring  its  passengers  to  a  common  landing, 
where  the  necessity,  comfort,  or  convenience  of  their  situation  com- 
pels them  to  obtain  on  their  own  account  transportation  to  some 
place  beyond,  and  there  introduce  them  to  one  favored  party,  saying: 
"If  you  engage  transportation  from  this  party,  j'ou  may  do  so  here  on 
the  spot,  without  delay  or  inconvenience,  and  take  passage  from  this 
platform  without  delay  or  inconvenience,  provided  you  will  engage 
this  particular  party,  and  pay  his  demands;  otherwise,  you  must 
suffer  the  importunity  of  this  party  to  take  passage  with  him,  and  if 
you  will  not,  you  must  suffer  the  inconvenience  and  delay  of  going  to 
some  other  point  to  engage  conveyance  and  take  passage."  All  this 
the  railroad  does,  not  for  a  benefit  to  the  passengers,  but  for  a  bene- 
fit to  itself,  over  and  above  what  the  passenger  has  paid  for  transpor- 
tation over  the  railroad.  If  the  railroad  company  set  bounds  be^'ond 
which  all  hackmeu  were  forbidden  to  come,  and  undertook  to  forbid 
all  solicitation  within  the  depot  or  on  the  platform  on  the  part  of 
hackmen  or  others  for  employment,  this  would  be  an  entirely  different 
proposition.  The  company  does  not  undertake  to  protect  the  passen- 
ger from  that  annoyance  in  these  cases,  but  invites  it,  and  farms  out 
the  exclusive  privilege  and  opportunity  to  do  this.  In  the  case  cited 
suj)ra,  the  majority  of  the  court  bases  its  conclusion  on  the  ground 
that  the  hackman  has  no  right  or  license  to  be  in  plaintiff's  depot 
without  the  express  or  tacit  permission  of  plaintiff;  and  this  license, 
if  granted,  may  be  revoked  at  pleasure,  ^ye  may  grant  this  premise. 
The  right  which  the  railroad  has  to  exclude  all  hackmen  from  its 
depot  buildings  and  platform  may  rest  upon  the  same  principle. 
But  has  the  railroad  company,  in  dealing  with  its  passengers,  and 
exercising  a  control  over  their  movements  and  the  conditions  which 
surround  them  for  the  time  being,  a  right  to  place  one  hackman  in 
their  midst,  with  exclusive  control  over  the  common  conveniences 
and  facilities  of  the  place  at  which  the  passenger  may  land,  or  from 
which  he  may  depart,  so  that,  if  the  passenger  obtain  the  use  of 
these  conveniences  and  facilities,  he  must  purchase  the  privilege  from 
such  hackmen  or  suft'er  discrimination?  The  use  of  these  common 
conveniences  and  facilities  belong  to  the  passengers  alike,  in  the 
order  in  which  they  may  come  to  occupy  them;  whereas  the  railroad 
company  has  granted  away  what  belonged  to  the  passengers  in  com- 
mon, and  the  one  holding  the  grant  may  use  it  as  an  advantage 
over  the  passenger,  to  compel  his  eniplo3'ment.  It  is  said  in  the 
opinion  cited  supra:  "If  a  railroad  company  allows  a  person  to  sell 


MONTANA    UNION    KY.    V.    LANGLOIS.  171 

refreshments  or  newspapers  in  its  depots,  or  to  cultivate  flowers  on 
its  station  grounds,  the  statute  does  not  extend  the  sauie  right  to  all 
persons."  Upon  this  proposition  it  might  be  suggested  that  the 
passenger  has  no  common  interest  or  rights  which  meet  and  inter 
mingle  with  the  rights  of  the  common  carrier  on  this  subject,  or  which 
are  affected  by  such  a  grant.  The  same  reply  may  be  made,  we 
think,  with  good  reason,  to  the  proposition  as  to  a  place  to  serve 
refreshments  on  the  premises  of  the  plaintiff.  The  passenger  has  no 
common  rights  which  are  taken  away  or  interfered  with  by  the  com- 
pany in  this  respect.  It  is  true,  the  passenger's  necessities  may  re- 
quire that  he  have  food  at  proper  times  on  his  journey;  but  all  pas- 
sengers have  an  equal  right  to  provide  supplies,  under  regulations 
which  apply  to  all  alike  as  to  the  amount  of  baggage  allowed  to  each. 
Moreover,  this  question  has  no  relation  to  the  mutual  engagements 
existing  between  the  common  carrier  and  its  passengers.  The  pas- 
senger has  purchased,  or  proposes  to  purchase,  from  the  common  car- 
rier, transportation,  and  he  must  come  to  the  station  to  receive  such 
transportation,  and  on  arriving  at  his  destination  he  must  depart 
from  the  station.  The  right  to  come  to  the  station,  and  depart  there- 
from, under  reasonable  regulations  which  apply  alike  to  all  passen- 
gers, without  special  conditions,  is  incidental  to  the  main  contract; 
while  the  supply  of  refreshments  or  newspapers,  or  the  cultivation  of 
flowers,  at  the  station  grounds,  has,  as  we  conceive,  no  appropriate  con- 
nection with  the  engagements  of  the  passenger  and  the  common  carrier. 

The  case  cited  supra  is  the  only  American  case  brought  to  our 
attention  which  passes  upon  points  directly  involved  herein.  The 
subject  is  apparently  a  new  one  in  this  country.  The  English  cases 
involving  the  main  subject  of  controversy  are  also  few  in  number. 
In  the  case  of  Marriott  v.  Railway  Co.,  1  C.  B.  (N.  S.)  499,  the 
complainant,  Marriott,  alleged  that  he  brought  passengers  to  defend- 
ant's railway  station,  and  the  latter  refused  him  access  to  the  station 
grounds  to  deliver  his  passengers  there,  while  at  the  same  time  this 
privilege  was  granted  to  other  omnibuses;  and,  upon  this  showing, 
an  injunction  was  granted.  Other  English  cases  bearing  upon  the 
main  subject  here  under  consideration  have  been  examined.  Beadell 
V.  Railway  Co.,  2  C.  B.  (N.  S.)  509;  Painter  v.  Railway  Co.,  Id.  702; 
Barker  v.  Railway  Co.,  18  C.  B.  46.  The  demands  in  the  case  at 
bar  on  the  part  of  plaintiff  go  beyond  those  urged  in  any  of  the  cases 
so  far  examined  by  us. 

Upon  grounds  of  sound  reason,  public  policy,  and  the  general  prin- 
ciples of  law  governing  common  carriers,  as  well  as  the  provisions  of 
the  constitution,  we  believe  the  order  of  the  court  below  ought  to  be 
affirmed ;  and  it  is  so  ordered. 

Blake,  C.  J.,  concurs.^ 

^  Ace.  Indian  River  S.  B.  Co.  v.  East  Coast  Transp.  Co.,  28  Fla.  387,  10  So.  480; 
McConnell  v.  Pedigo,  92  Ky.  46.5,  18  S.  W.  15  ;  Kalamazoo  Hack  &  Bus  Co.  r.  Sootsma, 
84  Mich.  194,  47  N.  W.  667  ;  Cravens  v.  Rodgers,  101  Mo.  247,  14  S.  W.  106. 

See  Oregon  Short  Line  &  U.  N.  Ry.  r.  llwaco  Ry.  &  Nav.  Co.,  51  Fed.  611.  —  Ed. 


172  STATE   V.    STEELE. 

STATE    y.    STEELE. 
Supreme  Court  of  North  Carolina,  1890. 

[106  N.  C.  766;   11  S.  E.  478.] 

This  was  a  criminal  action,  tried  before  Charles  A.  Moore, 
Judge,  and  a  jury,  at  the  October  term  of  the  Criminal  Court  of 
Buncombe  County,  on  an  appeal  from  a  court  of  a  justice  of  the  peace 
of  said  county.^  .   .   . 

The  court  charged  the  jury  as  follows:  — 

"If  you  shall  find  from  the  evidence  that  others  engaged  in  the 
same  business  as  the  prosecutor  were  permitted  by  the  defendant  to 
go  to  the  Battery  Park  Hotel  for  the  same  purpose  for  which  the 
prosecutor  went  there,  —  that  is,  to  secure  and  transact  business  for 
his  employer's  livery  stable,  — then  the  prosecutor  had  also  the  right 
to  go  there  for  that  purpose  at  reasonable  times,  and  to  remain  there 
a  reasonable  length  of  time  for  the  transaction  of  such  business;  and 
it  would  not  matter  that  the  rules  of  the  hotel  forbade  his  entering 
the  premises  of  the  hotel  for  that  purpose,  or  that  he  had  been  pre- 
viously forbidden,  in  writing,  to  come  upon  the  premises  of  the  hotel, 
nor  would  it  matter  that  the  defendant  had  designated  a  place  at  the 
back  of  the  hotel  where  livery-men  could  transact  their  livery  business 
with  the  guests  of  the  hotel,  through  the  servants  and  employes  of  the 
hotel,  even  though  the  prosecutor  knew  of  such  place  being  so  desig- 
nated. He  would  not,  however,  have  the  right  to  go  there  at  all 
times,  nor  would  he  have  the  right  to  remain  there  all  the  time,  or  an 
unreasonable  length  of  time,  for  the  transaction  of  such  business, 
against  the  will  of  the  owner  or  manager."  .   .   . 

Avery,  J.  It  was  formerly  held  by  the  courts  of  England  that 
where  an  innkeeper  allured  travellers  to  his  tavern  by  holding 
himself  out  to  the  public  as  ready  to  entertain  them,  and  then  refused 
to  receive  them  into  his  house  when  he  had  room  to  accommodate 
them,  and  after  they  had  tendered  the  money  to  pay  their  bills,  he  was 
liable  to  indictment.  But  this  doctrine,  says  Bishop  (Volume  I. 
§  532,  Crim.  Law),  "has  little  practical  effect  at  this  time,  being 
rather  a  relic  of  the  past  than  a  living  thing  of  the  present."  Eex  v. 
Luellin,  12  Mod.  445.  In  a  dictum  in  State  v.  Matthews,  2  Dev.  «& 
B.  424,  this  old  principle  was  stated  with  some  qualification,  viz., 
that  "all  and  every  one  of  the  citizens  have  a  right  to  demand  enter- 
tainment of  a  public  innkeeper,  if  they  behave  themselves,  and  are 
willing  and  able  to  pay  for  their  fare;  and,  as  all  have  a  right  to  go 
there  and  be  entertained,  they  are  not  to  be  annoyed  there  by  dis- 
order, and  if  the  innkeeper  permits  it  he  is  subject  to  be  indicted 
as  for  a  nuisance."  Rommel  v.  Schanbacker,  120  Pa.  579.  The 
duty  and  legal  obligation  resting  upon  the  landlord  is  to  admit  only 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


STATE   V.    STEELE.  173 

such  guests  as  demand  accommodation,  and  he  has  the  right  to  refuse 
to  allow  even  travellers  who  are  manifestly  so  filthy,  drunken,  or 
profane  as  to  prove  disagreeable  to  others  who  are  inmates,  and 
thereby  to  injure  the  reputation  of  his  house,  to  enter  his  inn  for  food 
or  shelter,  though  they  may  be  abundantly  able  to  pay  his  charges. 
2  AVhart.  Crim.  Law,  §  1587;  Reg.  v.  Rymer,  13  Cox,  Crim.  Cas. 
37'S.  The  right  to  demand  admission  to  the  hotel  is  confined  to  per- 
sons who  sustain  the  relation  of  guests,  and  does  not  extend  to  every 
individual  who  invades  the  premises,  not  in  response  to  the  invitation 
given  by  the  keeper  to  the  public,  but  in  order  to  gratify  his  curiosity 
by  seeing,  or  his  cupidity  by  trading  with,  patrons  who  are  under  the 
protection  of  the  proprietor.  1  Whart.  Crim.  Law,  §  625.  The  land- 
lord is  not  only  under  no  obligation  to  admit,  but  he  has  tlie  power  to 
prohibit  the  entrance  of,  any  person  or  class  of  persons  into  his  house 
for  the  purpose  of  plying  his  guests  with  solicitations  for  patronage 
in  their  business;  and  especially  is  this  true  when  the  very  nature  of 
the  business  is  such  that  human  experience  would  lead  us  to  expect 
the  competing  "drummers,"  in  the  heat  of  excitement,  not  only  to 
trouble  the  guests  by  earnest  and  continued  approaches,  but  by  their 
noise,  or  even  strife.  The  guest  has  a  positive  right  to  demand  of  the 
host  such  protection  as  will  exempt  him  from  annoyance  by  such 
persons  as  intrude  upon  him  without  invitation  and  without  welcome, 
and  subject  him  to  torture  by  a  display  of  their  wares  or  books,  or  a 
recommendation  of  their  nostrums  or  business.  That  learned  and 
accomplished  jurist.  Chief  Justice  Shaw,  delivering  the  opinion  in 
Com.  V.  Power,  7  Met.  600,  said:  "An  owner  of  a  steamboat  or  rail- 
road, in  this  respect,  is  in  a  condition  somewhat  similar  to  that  of  an 
innkeeper,  whose  premises  are  open  to  all  guests,  yet  he  is  not  only 
empowered,  but  he  is  bound,  so  to  regulate  his  house  as  well  with 
regard  to  the  peace  and  comfort  of  his  guests,  who  there  seek  repose, 
as  to  the  peace  and  quiet  of  the  vicinity,  and  to  repress  and  prohibit 
all  disorderly  conduct  therein,  and  of  course  he  has  a  right  and  is 
bound  to  exclude  from  his  premises  all  disorderly  persons,  and  all 
persons  not  conforming  to  regulations  necessary  and  proper  to  secure 
such  quiet  and  good  order."  This  principle  was  stated  as  an  estab- 
lished one,  and  used  by  the  court  as  an  argument  to  sustain  by 
analogy  its  ruling  announced  in  a  subsequent  portion  of  the  opinion, 
that  a  railroad  company  had  a  right  by  its  regulations  to  exclude  from 
its  depot  and  cars,  at  any  station,  persons  who  visited  them  for  the 
purpose  of  soliciting  passengers  to  stop  at  particular  hotels;  and 
one  of  the  reasons  given  for  holding  the  regulation  reasonable  was 
that,  where  the  agent  urged  the  claims  of  their  respective  hotels  "with 
earnestness  and  importunity,  it  was  an  annoyance  to  passengers." 
The  doctrine  is  there  laid  down,  too,  that  persons  other  than  passen- 
gers ^rma/acie  have  the  right  to  enter  the  depot  of  a  railroad  companj^ 
as  others  besides  guests  may  go  into  hotels,  without  making  themselves 
trespassers,  because  in  both  instances  there  is  an  implied  license  given 


174  STATE    V.    STEELE. 

to  the  public  to  enter.  But  such  licenses  in  their  nature  are  revocable, 
except  in  the  one  case  as  to  passengers,  and  in  the  other  as  to  guests, 
who  have  the  right  to  enter  the  train,  ticket-office,  or  hotel,  as  the 
case  may  be,  if  they  are  sober,  orderly,  and  able  to  pay  for  transpor- 
,tation  or  fare.  The  court  went  further  in  that  case,  and  held  that, 
in  enforcing  the  reasonable  regulation  against  "drummers"  for  hotels 
at  the  depot,  the  servants  of  the  railway'  company'  were  not  guilty  of 
an  assault  for  expelling  by  force,  not  excessive,  a  person  who  had 
repeatedly  violated  the  regulation  by  going  upon  the  platform  and 
soliciting  for  a  hotel,  though  on  the  particular  occasion  when  he  was 
ejected  from  it  he  had  a  ticket,  and  intended  to  take  the  train  des- 
tined for  another  town,  but  failed  to  disclose  to  such  servants  the  fact 
that  he  entered  for  "another  purpose,  when  it  was  in  his  power  to 
do  so." 

Were  we  to  follow  the  analogy  to  which  the  principle  laid  down  in 
that  case  would  lead,  an  innkeeper  could  not  only  make  and  enforce  a 
regulation  forbidding  persons  to  come  on  his  premises  for  the  purpose 
of  soliciting  his  guests  to  patronize  the  livery  stables  that  they  might 
represent,  but  he  might,  in  enforcing  the  rule  against  one  who  had 
previously  violated  it  after  notice  that  he  should  not  do  so,  put  such 
person  off  his  premises,  without  excessive  force,  though  at  the  partic 
ular  time  the  person  had  entered  with  the  bona  fide  intent  to  become  a 
guest  at  the  hotel,  but  failed  to  announce  his  purpose;  or,  under  the 
same  principle,  he  might  expel  by  force  one  who  becomes  a  guest, 
and  takes  advantage  of  his  situation  to  subject  other  inmates  of  the 
house  to  the  annoyance  of  "drumming"  for  such  establishments.  The 
Bame  distinction  is  drawn  between  guests  and  others  who  enter  an 
hotel  intent  on  business  or  pleasure  by  the  courts  of  Pennsylvania. 
In  Com.  V.  Mitchell,  1  Phila.  63,  and  Com.  v.  Mitchel,  2  Pars. 
Eq.  Cas.  431,  it  was  held  that  an  innkeeper  is  bound  to  receive  and 
furnish  food  and  lodging  for  all  who  enter  his  hotel  as  guests,  and 
tender  him  a  reasonable  price  for  such  acconnnodation ;  but  "if  an 
individual  [other  than  a  guest]  has  entered  a  public  inn,  and  his  pres- 
ence is  disagreeable  to  the  proprietor  or  his  guests,  he  has  a  right  to 
request  the  person  to  depart,  and,  if  he  refuses,  the  innkeeper  has  the 
right  to  lay  his  hands  gently  upon  him,  and  lead  him  out,  and,  if 
resistance  is  made,  to  employ  sufficient  force  to  put  him  out,"  with- 
out incurring  liability  to  indictment  "for  assault  and  battery,"  .   .   . 

[The  learned  judge  here  stated  and  commented  upon  the  cases  of 
Jencks  v.  Coleman,  2  Sum.  224;  Barney  v.  Steam-Boat  Co.,  67  N.  Y. 
302;  Harris  v.  Stevens,  31  Vt.  79;  Old  Colony  R.  K.  v.  Tripp,  147 
Mass.  35.  j 

Upon  a  review  of  all  the  authorities  accessible  to  us,  and  upon  the 
application  of  well-established  principles  of  law  to  the  admitted  facts 
of  this  particular  case,  we  are  constrained  to  conclude  that  there  was 
error  in  the  charge  given  by  the  court  to  the  jurj^  because: 

1.    Guests  of  an  hotel,  and  travellers  or  other  persons  entering  it 


STATE    V.    STEELE.  175 

with  the  bona  fide  intent  of  becoming  guests,  cannot  be  lawfully 
prevented  from  going  in  or  put  out  by  force,  after  entrance,  provided 
they  are  able  to  pay  the  charges  and  tender  the  money  necessary  for 
that  purpose,  if  requested  by  the  landlord,  unless  they  be  persons  of 
bad  or  suspicious  character,  or  of  vulgar  habits,  or  so  objectionable 
to  the  patrons  of  the  house,  on  account  of  the  race  to  which  they  be- 
long, that  it  would  injure  the  business  to  admit  them  to  all  portions 
of  the  house,  or  unless  they  attempt  to  take  advantage  of  the  freedom 
of  the  hotel  to  injure  the  landlord's  chances  of  profit  derived  either 
from  his  inn  or  any  other  business  incidental  to  or  connected  with  its 
management,  and  constituting  a  part  of  the  provision  for  the  wants 
or  pleasure  of  his  patrons.  Jencks  v.  Coleman,  supra;  Com.  v. 
Mitchell,  supra  ;  Com.  v.  Power,  sivpra ;  Pinkertou  v.  Woodward,  91 
Amer.  Dec.  660;  Barney  v.  Steam-Boat  Co.,  snpra  ;  1  Whart.  Crim. 
Law,  §  621;  Ang.  Carr.  §§  525,  529,  530;  Brittou  v.  Railroad  Co.,  88 
N.  C.  536. 

2.  When  persons  unobjectionable  on  account  of  character  or  race 
enter  an  hotel,  not  as  guests,  but  intent  on  pleasure  or  profit,  to  be 
derived  from  intercourse  with  its  inmates,  they  are  there,  not  of 
right,  but  under  an  implied  license  that  the  landlord  may  revoke  at 
any  time;  because,  barring  the  limitation  imposed  by  holding  out 
inducements  to  the  public  to  seek  accommodation  at  his  inn,  the 
proprietor  occupies  it  as  his  dwelling-house,  from  which  he  may  expel 
all  who  have  not  acquired  rights,  growing  out  of  the  relation  of  guest, 
and  must  drive  out  all  who,  by  their  bad  conduct,  create  a  nuisance 
and  prove  an  annoyance  to  his  patrons.  Harris  v.  Stevens,  31  Vt. 
79 ;  1  Whart.  Crim.  Law,  §  625. 

3.  The  regulation,  if  made  by  any  innkeeper,  that  the  proprietors 
of  livery  stables,  and  their  agents  or  servants,  shall  not  be  allowed 
to  enter  his  hotel  for  the  purpose  of  soliciting  patronage  for  their 
business  from  his  guests,  is  a  reasonable  one,  and,  after  notice  to 
desist,  a  person  violating  it  may  be  lawfully  expelled  from  his  house, 
if  excessive  force  be  not  used  in  ejecting  him.  Com.  v.  Power, 
supra;  Harris  v.  Stevens,  supra.  See,  also,  Griswold  v.  Webb,  16 
R.  I.  649 ;  Railroad  Co.  v.  Tripp,  supra. 

4.  An  innkeeper  has  unquestionably  the  right  to  establish  a  news- 
stand or  a  barber-shop  in  his  hotel,  and  to  exclude  persons  who  come 
for  the  purpose  of  vending  newspapers  or  books,  or  of  soliciting 
employment  as  barbers;  and,  in  order  to  render  his  business  moi-e 
lucrative,  he  may  establish  a  laundry  or  a  livery  stable  in  connection 
with  his  hotel,  or  contract  with  the  proprietor  of  a  livery  stable  in  the 
vicinity  to  secure  for  the  latter,  as  far  as  he  legitimately  can,  the 
patronage  of  his  guests  in  that  line  for  a  per  centum  of  the  proceeds 
or  profits  derived  by  such  owner  of  vehicles  and  horses  from  dealing 
with  the  patrons  of  the  public  house.  After  concluding  such  a  con- 
tract, the  innkeeper  may  make,  and  after  personal  notice  to  violators, 
enforce,  a  rule  excluding  from  his  hotel  the  agents  and  representa- 


176  STATE   V.    STEELE. 

tives  of  other  livery  stables  who  enter  to  solicit  the  patronage  of  his 
guests;  and  where  one  has  persisted  in  visiting  the  hotel  for  that 
purpose,  after  notice  to  desist,  the  proprietor  may  use  sufficient  force 
to  expel  him  if  he  refuse  to  leave  when  requested,  and  may  eject  him, 
even  though  on  a  particular  occasion  he  may  have  entered  for  a  lawful 
purpose,  if  he  does  not  disclose  his  true  intent  when  requested  to 
leave,  or  whatever  may  have  been  his  purpose  in  entering,  if  he  in 
fact  has  engaged  in  soliciting  the  patronage  of  the  guests.  Barney 
V.  Steam-Boat  Co.,  supra;  Jencks  v.  Coleman,  and  Harris  v.  Stevens, 
supra  ;  Aug.  &  A.  Corp.  §  530. 

5.  The  broad  rule  laid  down  by  Wharton  (1  Crim.  Law,  §  625)  is 
that  "the  proprietor  of  a  public  inn  has  a  right  to  request  a  person 
who  visits  it,  not  as  a  guest  or  on  business  with  a  guest,  to  depart, 
and  if  he  refuse  the  innkeeper  has  a  right  to  lay  his  hands  gently  upon 
him,  and  lead  him  out,  and,  if  resistance  be  made,  to  employ  sutflcient 
force  to  put  him  out;  and  for  so  doing  he  can  justif}'  his  conduct  on 
a  prosecution  for  assault  and  battery."  It  will  be  observed  that  the 
author  adopts  in  part  the  language  already  quoted  from  the  courts  of 
Pennsylvania. 

6.  If  it  be  conceded  that  the  prosecutor  went  into  the  hotel  at  the 
request  of  a  guest,  and  for  the  purpose  of  conferring  with  the  latter  on 
business,  still,  in  any  view  of  the  case,  if,  after  entering,  he  engaged 
in  "drumming  "  for  his  employer  when  he  had  been  previously  notified 
to  desist  in  obedience  to  a  regulation  of  the  house,  the  defendant  had 
a  right  to  expel  him  if  he  did  not  use  more  force  than  was  necessary; 
and  if  the  prosecutor,  having  entered  to  see  a  guest,  did  not  then 
solicit  business  from  the  patrons  of  the  hotel,  but  had  done  so  pre- 
viously, the  defendant,  seeing  him  there,  had  a  right  to  use  sufficient 
force  to  eject  him,  unless  he  explained,  when  requested  to  leave,  what 
his  real  intent  was.  Harris  v.  Stevens,  and  Com.  v.  Power,  supra. 
The  guest,  by  sending  for  a  hackman,  could  not  delegate  to  him  the 
right  to  do  an  act  for  which  even  the  guest  himself  might  lawfully  be 
put  out  of  the  hotel. 

7.  If  we  go  further,  and  admit,  for  the  sake  of  argument,  that  the 
principle  declared  in  Markham  (\  Brown,  8  N.  H.  530,  and  relied  on 
to  sustain  the  view  of  the  court  below,  is  not  inconsistent  with  the 
law  on  the  same  subject,  as  we  find  it  laid  down  by  Wharton  and 
other  recognized  authorities,  still  our  case  will  be  found  to  fall  under 
the  exception  to  the  general  rule  stated  in  express  terms  in  that  case. 
The  court  said:  "If  one  comes  to  injure  his  [the  innkeeper's]  house, 
or  if  his  business  operates  directly  as  an  injury,  that  may  alter  the 
case;  but  that  has  not  been  alleged  here;  and  perhaps  there  may  be 
cases  in  which  he  may  have  a  right  to  exclude  all  but  travellers  and 
those  who  have  been  sent  for  by  them.  It  is  not  necessary  to  settle 
that  at  this  time."  There  was  no  evidence  in  Markham  v.  Brown 
that  the  proprietor  of  the  hotel  had  any  contract  with  another  stage 
line,  or  would  suffer  pecuniary  loss  or  injury,  if  the  agent  who  was 


STATE  V.  stee:,e.  177 

expelled  was  successful  in  bis  solicitations;  and  it  seems  that  Angell 
and  others,  who  cite  as  authority  that  case,  as  well  as  Jeucks  c.  Cole- 
man and  Barney  o.  Steam-Boat  Co.,  reconcile  them  by  drawing  ihe 
distinction  that  in  the  latter  cases,  and  in  the  hypothetical  case  of  an 
innkeeper,  put  by  Justice  Stouy,  the  person  whose  expulsion  was 
justified  was  doing  an  injury  to  the  proprietor,  who  had  him  removed, 
bv  diminishing  his  prolits  derived  legitimately  from  a  business  used 
as  an  adjunct  to  that  of  common  carrier  or  innkeeper.  In  using  the 
language  quoted  above,  Justice  Parker  seems  to  have  had  in  his 
mind,  without  referring  to  it,  the  opinion  of  Justice  Story,  delivered 
in  the  circuit  court  but  two  years  before  (Jencks  v.  Coleman,  sujjra). 
8.  Tlie  defendant,  as  manager  of  the  hotel,  could  make  a  valid 
contract,  for  a  valuable  consideration,  with  Sevier,  to  give  him  the 
exclusive  privilege  of  remaining  in  the  house  and  soliciting  patronage 
from  the  guests  in  any  business  that  grew  out  of  providing  for  the 
comfort  or  pleasure  of  the  patrons  of  the  house.  The  proprietors  of 
the  public  house  might  legitimately  share  in  the  profits  of  any  such 
incidental  business,  as  furnishing  carriages,  buggies,  or  horses  to  the 
patrons,  and  for  that  purpose  had  as  full  right  to  close  their  house 
against  one  who  attempted  to  injure  the  business  in  which  they  had 
such  interest  as  the  owner  of  a  private  house  would  have  liad,  and 
this  view  of  the  case  is  consistent  with  the  doctrine  enunciated  in 
Markham  v.  Brown.  There  was  no  evidence  tending  to  show  that 
Chambers  had  actual  permission  from  the  proprietors  to  approach  the 
inmates  of  the  hotel  on  the  subject  of  patronizing  him,  nor  that  they 
had  actual  knowledge  of  the  fact  that  he  had  continued  his  solicita- 
tions after  receiving  a  similar  notice  to  that  sent  to  the  prosecutor. 
The  fact  that  he  was  overlooked  or  passively  allowed  to  remain  in  the 
hotel  (it  may  be  under  the  impression  on  the  part  of  the  defendant 
that  he  had  desisted  from  his  objectionable  practices)  cannot,  in  any 
view  of  the  law,  work  a  forfeiture  of  the  right  to  enforce  a  reasonable 
regulation,  made  to  protect  their  legitimate  business  from  injury. 
If,  therefore,  a  permit  on  the  part  of  the  defendant  to  Chambers  to 
"drum  "  gratuitously  in  the  house  would  at  once  have  opened  his  doors 
to  all  of  the  competitors  of  the  latter  (a  proposition  that  we  are  not 
prepared  to  admit),  the  defendant  did  not,  so  far  as  the  testimony'  dis- 
closes the  facts,  speak  to  him  on  the  subject;  and  the  soundness  of 
the  doctrine  that,  without  interfering  with  the  legal  rights  of  the 
guests,  the  proprietor  of  a  hotel  is  prohibited  by  the  organic  law  from 
granting  such  exclusive  privileges  to  any  individual,  as  to  the  use  or 
occupancy  of  his  premises,  as  any  other  owner  of  land  may  extend, 
is  not  drawn  in  question.  We  therefore  sustain  the  second  and  third 
assignments  of  error.  His  honor  erred,  for  the  reasons  given,  in  in- 
structing the  jury  that  the  guilt  of  the  defendant  depended  upon  the 
question  whether  he  permitted  Chambers  or  Sevier  to  solicit  custom 
in  the  house.  He  had  a  lawful  right  to  discriminate,  for  a  consider- 
ation, in  favor  of  Sevier,  while  it  does  not  appear  from  the  evidence 

12 


178  HALE   V.    GRAND    TRUNK    RAILROAD. 

that  he  granted  any  exclusive  privileges  to  Chambers.  We  hold  that 
the  regulation  was  such  a  one  as  an  innkeeper  had  the  power  to 
make,  and  must  not  be  understood  as  approving  the  idea  that  the 
sanction  of  the  municipal  authorities  could  impart  validity  to  it,  if  it 
were  not  reasonable  in  itself,  and  within  the  powers  which  the  law 
gives  to  proprietors  of  public  houses  in  order  that  the}'  ma}'  guard 
their  own  rights  and  protect  their  patrons  from  annoyance.  For  the 
reasons  given  the  defendant  is  entitled  to  a  new  trial. -^ 


HALE  V.    GRAND  TRUNK  RAILROAD. 

Supreme  Court  of  Vermont,  1888. 

[60  Vt.  605;   15  Atl.  300.] 

Ross,  J.^  By  the  agreed  case,  November  2,  1885,  the  defendant 
was  operating  a  railway  from  Portland,  Me.,  to  Canada  Line,  and 
had  a  station  at  Berlin  Falls,  N.  H.  As  such  it  was  carrying  the 
mail  on  its  mail  trains  for  the  United  States  government,  according 
to  the  laws  of  the  United  States,  and  pursuant  to  the  conditions  and 
regulations  imposed  by  the  post-office  department,  at  a  fixed  compen- 
sation. The  plaintiff,  on  that  evening,  in  attempting  to  go  to  its 
mail  train  while  stopping  at  the  station  at  Berlin  Falls,  for  the  pur- 
pose of  mailing  some  letters,  in  the  exercise  of  due  and  proper  care, 
fell  from  an  unguarded  and,  as  he  claims,  insufficiently  lighted  plat- 
form, leading  from  the  station  to  the  train,  and  was  injured.  By  the 
regulations  of  the  post-office  department  it  was  then  the  duty  of 
postal  clerks  on  trains  carrying  the  mail  to  receive  at  the  cars  among 
other  things,  from  the  public,  letters  on  which  the  postage  had  been 
prepaid,  and  then  to  sell  stamps  with  which  to  prepay  such  postage. 
Sections  720,  762,  Instructions  to  Railway  Postal  Clerks,  Hence, 
as  a  part  of  the  service  w^hich  the  defendant  was  performing  for  the 
government,  and  for  which  it  was  receiving  compensation  from  the 
government,  it  was  under  a  duty  to  furnish  the  public  a  reasonably 
safe  passage  to  and  from  its  mail  trains,  while  stopping  at  its  regular 
stations,  for  the  purpose  of  purchasing  stamps  and  mailing  such 
letters.  The  plaintiff  was  a  member  of  the  public,  and  was  attempt- 
ing to  pass  over  the  platform  provided  by  the  defendant  to  the  mail 
train,  for  the  lawful  purpose  of  mailing  two  letters.  B}'  accepting 
the  carriage  of  the  mail  for  the  government,  the  defendant  became 
under  the  duty  to  furnish  him  a  reasonably  safe  passage  to  its  mail 
train,  for  the  purpose  of  mailing  his  letters.  In  attempting  to  pass 
over  the  platform  to  its  mail  train  for  this  purpose  the  plaintiff  was 

1  See  Fluker  v.  Georgia  R.  R.  &  B.  Co.,  81  Ga.  461,  8  S.  E.  529;  Com.  v.  Power, 
7  Met  596  ;  Cole  v.  Rowen,  88  Mich.  219,  50  N  W.  1.38  ;  Smith  v.  New  York,  L.  E.  & 
W.  R.  R.  149  Pa.  249,  24  Atl.  304.  —  Ed. 

2  The  opinion  only  is  given  ;  it  sufficient]}"  states  the  case.  —  Ed. 


HALE  V.    GRAND  TRUNK  RAILROAD.  179 

neither  a  trespasser,  intruder,  nor  loafer,  but  was  there  to  transact 
business,  which  the  defendant  had  undertaken  to  do  with  him,  for  a 
compensation  received  from  the  government;  in  fact  was  there,  at  the 
invitation  of  the  defendant,  to  transact  business  which  it  had  been 
hired  to  perform  for  and  with  liim,  by  the  government.  The  duty  of 
the  defendant  to  furnish  the  plaintiff  a  reasonably  safe  passage  to  its 
mail  train  to  mail  his  letters  was  none  the  less  binding  or  obligatory 
because  the  compensation  received  therefor  came  from  the  government 
rather  than  the  plaintiff.  A.  holds  a  regular  passenger  ticket  over 
a  railroad.  The  duty  of  the  company'operating  the  road  to  carry  him 
safely  is  none  the  less  binding,  nor  are  his  legal  rights,  if  injured,  in 
the  least  abridged  because  the  ticket  was  paid  for  by  the  money  of 
B.,  rather  than  with  his  own  money.  The  government  derives  a 
large  part  of  its  revenue  with  which  it  pays  for  the  mail  service  by 
the  sale  of  postage  stamps  to  whomsoever  of  the  public  may  desire  to 
use  that  arm  of  its  service.  The  money  which  the  plaintiff  had  paid 
for  the  postage  stamps  upon  the  letters  he  was  carrying,  or  which  he 
would  have  paid  the  postal  clerk  for  stamps  to  use  upon  the  letters, 
was  indirectly  a  payment  to  the  defendant  for  the  service  which  it 
was  about  to  perform  for  the  plaintiff,  in  carrying  the  letters  which 
he  was  about  to  post,  on  the  way  towards  their  destination.  But 
whether  the  plaintiff  paid  indirectly  to  the  defendant  for  the  service 
and  accommodations  which  it  was  under  a  duty  to  furnish  him,  or  the 
government  paid  therefor,  and  gave  it  to  the  plaintiff,  does  not  vary 
the  defendant's  duty  to  furnish  him  a  reasonably  safe  passage  to  the 
mail  car  for  the  purpose  of  mailing  his  letters,  nor  are  his  legal  rights 
thereby  abated.  Actionable  negligence  is  a  failure  in  legal  duty 
which  occasions  an  injury  to  a  party  free  from  contributor}^  negli- 
gence, or  who  has  not  failed  in  the  discharge  of  his  duty  in  the  given 
circumstances.  They  have  also  conceded  in  the  agreed  case  that  the 
plaintiff  exercised  due  and  proper  care  on  the  occasion.  They  only 
contend  that  the  defendant  was  under  no  legal  duty  to  furnish  the 
plaintiff  a  reasonably  safe  passage  to  the  mail  car,  for  the  purpose  of 
mailing  his  letters,  mainly  because  he  was  to  pay  the  defendant 
nothing  therefor  directly.  But,  as  we  have  already  endeavored  to 
show,  that  fact  would  not  relieve  the  defendant  from  the  duty,  inas- 
much as  it  was  paid  by  the  government  for  discharging  that  duty  to 
the  public;  that  is,  to  any  person  who  had  occasion  to  go  to  the  mail 
car  when  stopping  at  regular  stations  to  transact  any  lawful  business 
with  the  servants  of  the  government.  These  views  would  affirm  the 
judgment  of  the  county  court,  but,  in  accordance  with  the  stipulation 
of  the  parties,  that  judgment  is  reversed  jjro  forma^  with  costs  to  the 
plaintiff,  and  the  cause  remanded  for  trial. ^ 

1  See  Bradford  v.  Boston  &  M.  R.  R ,  160  Mass.  392,  35  N.  E.  1131.  —  Ed. 


180  LOUISVILLE    &    N.    R.    R.    V.    CRUNK. 

LOUISVILLE   &   N.  R.  R.  v.  CRUNK. 
Supreme  Court  of  Indiana,  1889. 

[119  Ind.  542;  21  N.  E.  31.] 

Olds,  J.^  The  first  cause  for  new  trial  assigned  was  the  giving  by 
the  court,  at  the  request  of  the  phiiutiff,  instructions  1,  2,  3,  and  5. 
We  set  out  some  of  the  instructions.  No.  1  is  as  follows:  "If  you 
believe  from  the  evidence  that  at  the  time  mentioned  in  the  complaint 
the  defendant,  for  hire,  agreed  to  receive,  and  did  receive,  on  board 
its  train  of  cars  at  its  passenger  station  at  Mt.  Vernon,  Ind.,  one 
George  Naas  as  a  passenger,  and  that  the  defendant  had  knowledge 
that  said  Naas  was  at  the  time  so  sick  and  feeble  as  to  render  it 
necessary  for  him  to  be  carried  into  defendant's  car,  and  the  con- 
ductor of  said  train  then  present  had  knowledge  or  had  reasonable 
grounds  to  believe  that  the  plaintiff  entered  said  car  as  an  assistant 
in  carrying  said  Naas  therein,  and  in  seating  said  Naas  in  said  car, 
then  you  may  find  that  the  plaintiff  rightfully'  entered  said  car,  and 
that  the  defendant  owed  the  plaintiff  the  same  duties,  while  he  was 
rendering  said  assistance  to  said  Naas,  and  while  he  was  leaving  said 
car,  that  it  would  owe  to  any  of  its  passengers  for  hire."  This  in- 
struction was  proper.  The  defendant,  in  contracting  to  carry  the 
passenger,  Naas,  in  his  sick  and  enfeebled  condition,  contracted  an 
obligation  which  could  only  be  carried  out  by  Naas  being  carried 
upon  the  train  and  seated  in  the  car.  By  thus  contracting  to  carry 
Naas  as  a  passenger  it  took  upon  itself  the  obligation  of  allowing  him 
assistants  to  place  him  upon  the  train,  and  seat  him  in  the  car,  and 
the  compensation  received  by  the  defendant  for  conveying  Naas  from 
Mt.  Vernon  to  his  destination  included  as  well  the  right  to  have 
assistants  place  him  in  the  car  as  the  carrying  him  after  being  so 
placed  in  the  car,  and  the  defendant  owed  the  same  obligation  to  his 
assistants  while  necessarily  entering  and  leaving  the  car  with  Naas 
as  it  owed  to  Naas  himself.^ 


SEARS   V.   EASTERN   RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1867. 

[14  A!le)i,  433.] 

Action  containing  one  count  in  contract  and  one  in  tort.  Each 
count  alleged  that  the  defendants  were  common  carriers  of  passengers 

1  Only  so  much  of  the  opiuion  as  deals  with  tlie  refusal  to  give  instruction  1  is  re- 
printed. —  Ed. 

2  See  Ry.  v.  Lawton,  55  Ark.  428,  18  S.  W.  543  ;  Coleman  v.  Georgia  R.  R.  &  B. 
Co.,  84  Ga.  1,  10  S.  E.  498 ;  Doss  v.  M.  K.  &  T.  R.  R.,  59  Mo.  27  ;  Whitley  v.  Southern 
Ry.  (N. C),  29  S._E.  783.  — Ed. 


SEARS   V.    EASTERN    RAILROAD.  181 

between  Boston  and  Lynn,  and  that  on  the  loth  of  September,  I860, 
the  plaintiff  was  a  resident  of  Nahant,  near  Lynn,  and  the  defendants 
before  then  publicly  undertook  and  contracted  with  the  public  to  run  a 
train  for  the  carriage  of  passengers  from  Boston  to  Lynn  at  nine  and 
one  half  o'clock  in  the  evening  each  week  day,  Wednesdays  and  Satur- 
days excepted  ;  and  the  plaintiff,  relying  on  said  contract  and  uiulci- 
taking,  purchased  of  the  defendants  a  ticket  entitling  him  to  carriage 
upon  their  cars  between  Boston  and  Lynn,  and  paid  therefor  twenty- 
five  cents  or  thereabouts,  and  on  a  certain  week  day  thereafter,  neither 
Wednesda}'  nor  Saturday,  namely,  on  the  loth  of  said  September,  pre- 
sented himself  on  or  before  the  hour  of  nine  and  a  half  o'clock  in  the 
evening  at  the  defendant's  station  in  Boston  and  offered  and  attempted 
to  take  the  train  undertaken  to  be  run  at  that  hour,  as  a  passenger,  but 
the  defendants  negligently  and  wilfully  omitted  to  run  the  said  train  at 
that  hour,  or  any  train  for  Lynn,  till  several  hours  thereafter  ;  wheiefore 
the  plaintiff  was  compelled  to  hire  a  liver}'  carriage  and  to  ride  therein 
to  Lynn  b}'  night,  and  was  much  disturbed  and  inconvenienced. 

The  following  facts  were  agreed  in  the  Superior  Court.  The  defend- 
ants were  common  carriers,  as  alleged,  and  inserted  in  the  Boston 
Daily  Advertiser,  Post,  and  Courier,  from  the  15th  da\-  of  August  till 
the  loth  day  of  September  an  advertisement  announcing  the  hours  at 
which  trains  would  leave  Boston  for  various  places,  and  among  others 
that  a  train  would  leave  for  Lynn  at  9.30  p.  m.,  except  Wednesdays, 
when  it  would  leave  at  11.15,  and  Saturdays,  w'hen  it  would  leave  at 
10.30. 

The  plaintiff,  a  resident  of  Nahant,  consulted  one  of  the  above 
papers,  about  the  9th  of  September,  1865,  for  the  purpose  of  ascertain- 
ing the  time  when  the  latest  night  train  would  start  from  Boston  for 
Lynn  on  the  15th,  in  order  to  take  the  train  on  that  day,  and  saw  the 
advertisement  referred  to.  On  the  loth,  which  was  on  Friday,  he 
came  to  Boston  from  Lynn  in  a  forenoon  train,  and  in  the  evening, 
shortly  after  nine  o'clock,  presented  himself  at  the  defendants'  station 
in  Boston  for  the  purpose  of  taking  the  9.30  train  for  L^mn,  having 
with  him  a  ticket  which  previousl}-  to  September  9th  he  had  purchased 
in  a  package  of  five.  This  ticket  specified  no  particular  train,  but  pur- 
ported to  be  good  for  one  passage  in  the  cars  between  Boston  and 
Lynn  during  the  year  1865.  He  learned  that  this  train  had  been  post- 
poned to  11.15,  on  account  of  an  exhibition,  and  thereupon  hired  a 
buggy  and  drove  to  Lynn,  arriving  there  soon  after  10.30.  He  had 
seen  no  notice  of  an}-  postponement  of  this  train.  He  once,  in  1864, 
observed  a  notice  of  postponement,  and  heard  that  the  defendants 
sometimes  postponed  their  late  trains. 

For  several  years  before  1865  the  defendants'  su[)erintendent  had 
been  accustomed  occasionall}-  to  postpone  this  train,  as  often  as  from 
once  to  three  times  a  mouth,  for  the  purpose  of  allowing  the  public  to 
attend  places  of  amusement  and  instruction,  and  also  upon  holidays 
and  other  public  occasions  in  Boston  ;  giving  notice  thereof  by  hand- 


182  SEARS   V.    EASTERN    RAILROAD. 

bills  posted  in  the  defendants'  cars  and  stations.  On  the  13th  of  Sep- 
tember, 1865,  in  pursuance  of  this  custom,  he  decided  to  postpone  this 
train  for  September  lotli  till  11.15,  and  on  the  same  da}'  caused  notice 
thereof  to  be  printed  and  posted  in  the  usual  manner.  The  train  was 
so  postponed,  and  left  Boston  at  11.15,  arriving  at  L^-nn  at  11.45. 

The  defendants  offered  to  prove,  if  competent,  that  this  usage  of  de- 
taining the  train  was  generally'  known  to  the  people  using  the  Eastern 
Railroad,  and  that  the  number  of  persons  generall}'  going  hy  the  post- 
poned train  was  larger  than  generally  went  b}'  the  9.30  train,  and  was 
larger  on  the  evening  in  question  ;  but  at  the  station  in  Boston  there 
were  persons  complaining  of  the  postponement  of  the  train,  and  leaving 
the  station. 

It  was  agreed  that,  if  on  these  facts  the  plaintiff"  was  entitled  to  re- 
cover, judgment  should  be  entered  in  his  favor  for  ten  dollars,  without 
costs.  Judgment  was  rendered  for  the  defendants,  and  the  plaintiff" 
api)ealed  to  this  court. 

J.  L.  Stackpole^  for  the  plaintiff". 

C.  P.  Judd,  for  the  defendants.  If  the  plaintiiT  can  maintain  any 
action,  it  must  be  upon  the  count  in  contract.  There  was  no  proof  of 
deceit.  Tryon  v.  Whitmarsh,  1  Met.  1.  What  then  was  the  nature  of 
the  contract  between  the  parties?  The  ticket  merely  secured  one  pas- 
sage at  any  time  in  1865.  This  was  a  contract  to  carry  the  plaintiff  in 
the  usual  way  of  transporting  passengers.  It  was  usual  to  postpone 
this  train,  in  order  to  give  the  public  greater  accommodations.  The 
plaintiff' was  bound  by  this  usage,  whether  he  knew  it  or  not.  If  he 
neglected  to  inquire  as  to  the  custom,  it  is  his  own  fault.  Van  Sant- 
voord  V.  St.  John,  6  Hill,  160;  Cheney  v.  Boston  &  Maine  Railroad, 
11  Met.  121  ;  Clark  v.  Baker,  lb.  186;  City  Bank  v.  Cutter,  3  Pick. 
414;  Ouimit  v.  Henshaw,  35  Vt.  616,  622.  If  the  advertisement  was 
an  off"er  to  carry  passengers  at  9.30,  this  offer  was  withdrawn  on  the 
13th  by  due  notice.  M'Culloch  v.  Eagle  Ins.  Co.,  1  Pick.  278  ;  Boston 
&  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  The  acquiescence  in  the 
usage  of  the  defendants  by  the  i)ublic  for  years  shows  that  the  notice 
was  sufficient.  The  plaintiff  should  have  made  further  inquiry.  Booth 
V.  Barnum,  9  Conn.  290  ;  Taylor  v.  Stibbert,  2  Ves.  Jr.  437  ;  Taylor  v. 
Baker,  5  Price,  306. 

Chapman,  J.  If  this  action  can  be  maintained,  it  must  be  for  the 
breach  of  the  contract  which  the  defendants  made  with  the  plaintiff. 
He  had  purchased  a  package  of  tickets  entitling  lam  to  a  passage  in 
their  cars  for  each  ticket  from  Boston  to  Lynn.  This  constituted  a 
€ontract  between  the  parties.  Chenej'  v.  Boston  &  Fall  River  Railroad, 
11  Met.  121  ;  Boston  &  Lowell  Railroad  u.  Proctor,  1  Allen,  267;  Najac 
V.  Boston  &  Lowell  Railroad,  7  Allen,  329.  The  principal  question  in 
this  case  is,  what  are  the  terms  of  the  contract?  The  ticket  does  not 
express  all  of  them.  A  public  advertisement  of  the  times  when  their 
trains  run  enters  into  the  contract,  and  forms  a  part  of  it.  Denton  v. 
Great  Northern  Railway,  5  El.  &  Bl.  860.     It  is  an  off"er  which,  when 


SEAES    V.    EASTERN   EAILROAD.  183 

once  publicly  made,  becomes  binding,  if  accepted  before  it  is  retracted. 
Boston  &  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  Advertisements 
offering  rewards  are  illustrations  of  this  method  of  making  contracts. 
But  it  would  I)e  unreasonable  to  hold  that  advertisements  as  to  the  time 
of  running  trains,  when  once  made,  are  irrevocable.  Railroad  corpora- 
tions find  it  necessary  to  var}-  the  time  of  running  their  trains,  and  tliey 
have  a  right,  under  reasonable  limitations,  to  make  this  variation,  even 
as  against  those  who  have  purchased  tickets.  This  reserved  right 
enters  into  the  contract,  and  forms  a  part  of  it.  The  defendants  had 
such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  companj'  or  a  portion  of  their  ex- 
pected passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he  has 
had  reasonable  notice  of  it.  The  defendants  acted  upon  this  view  of 
their  duty,  and  gave  certain  notices.  Their  trains  had  been  advertised 
to  go  from  Boston  to  Lynn  at  9.30  p.  m.,  and  the  plaintiff  presented 
himself,  with  his  ticket,  at  the  station  to  take  the  train  ;  but  was  there 
informed  that  it  was  postponed  to  11.15.  The  postponement  had  been 
made  for  the  accommotlation  of  passengers  who  desired  to  remain  in 
Boston  to  attend  places  of  amusement.  Certain  notices  of  the  change 
had  been  given  ;  but  none  of  them  had  reached  the  plaintiff.  They 
were  printed  handbills  posted  up'in  the  cars  and  stations  on  the  day  of 
the  change,  and  also  a  day  or  two  before.  Though  he  rode  in  one  of 
the  morning  cars  from  Lynn  to  Boston,  he  did  not  see  the  notice,  and 
no  legal  presumption  of  notice  to  him  arises  from  the  fact  of  its  being 
posted  up.  Brown  v.  Eastern  Railroad,  11  Cush.  101  ;  Malone  v. 
Boston  &,  Worcester  Railroad,  12  Gray,  388,  The  defendants  pub- 
lished daily  advertisements  of  their  regular  trains  in  the  Boston  Daily 
Advertiser,  Post,  and  Courier,  and  the  plaintiff  had  obtained  his 
information  as  to  the  time  of  running  from  one  of  these  papers.  If 
they  had  published  a  notice  of  the  change  in  these  papers,  we  think  he 
would  have  been  bound  by  it.  For  as  they  had  a  right  to  make  changes, 
he  would  be  bound  to  take  reasonable  pains  to  inform  himself  whether  or 
not  a  change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  particu- 
lar train,  he  would  have  been  bound  by  the  reservation.  It  would  have 
bound  all  passengers  who  obtained  their  knowledge  of  the  time-tables 
from  either  of  these  sources.  But  it  would  be  contrary  to  the  elemen- 
tary law  of  contracts  to  hold  tliat  persons  who  relied  upon  the  adver- 
tisements in  either  of  those  papers  should  be  bound  by  a  reservation  of 
the  offer,  which  was,  without  their  knowledge,  posted  up  in  the  cars 
and  stations.  If  the  defendants  wished  to  free  themselves  from  their 
obligations  to  the  whole  public  to  run  a  train  as  advertised,  they  should 
publish  notice  of  the  change  as  extensively  as  they  published  notice  of 
the  regular  trains.  And  as  to  the  plaintiff,  he  was  not  bound  by  a 
notice  published  in  the  cars  and  stations  which  he  did  not  see.     If  it 


184  BASTAED    V.    BASTAED. 

had  been  published  in  the  newspapers  above  mentioned,  where  his  in- 
formation had  in  fact  been  obtained,  and  he  had  neglected  to  look  for 
it,  the  fault  would  have  been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make  occa- 
sional changes  was  immaterial,  because  the  advertisement  was  an  ex- 
press stipulation  which  superseded  all  customs  tiiat  were  inconsistent 
with  it.  An  express  contract  cannot  be  controlled  or  varied  b}'  usage. 
Ware  v.  Ha3ward  Rubber  Co.,  3  Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  b}-  failing  to  give  such 
notice  of  the  change  made  by  them  in  the  time  of  running  their  train  on 
the  evening  referred  to  as  the  plaintiff  was  entitled  to  receive,  violated 
their  contract  with  him,  and  are  liable  in  this  action. 

Judgment /or  the  plaintiff.^ 


Section  II.     Compensation. 

BASTARD    V.    BASTARD. 
King's  Bench,  1679. 

[2  Shou-er,  81.] 

Case  against  the  defendant  as  a  common  carrier,  for  a  box  delivered 
to  him  to  be  carried  to  B.,  and  lost  by  negligence. 

Willucms  moved  in  arrest  of  judgment,  because  there  was  no  partic- 
ular sum  mentioned  to  be  paid  or  promised  for  hire,  but  onlj'  ^jro  mer- 
cede  rationahili. 

Resolved  well  enough,  and  judgment  given  for  the  plaintiff;  for 
perhaps  there  was  no  jiarticular  agreement,  and  then  the  carrier  might 
have  a  qxiantmn  meruit  for  his  hire,  and  he  is  therefore  chargeable  for 
the  loss  of  the  goods  in  the  one  case  as  the  other. 


FITCHBURG    RAILROAD   v.    GAGE. 

Supreme  Judicial  Court  of  Massachusetts,  1859. 

[12  Gray,  393.] 

Action  of  contract  upon  an  account  annexed  against  Gage,  Hit- 
tinger,  &  Company  for  the  transportation  of  ice  from  Fresh  and  Spy 
Ponds  to  Charlestown,  over  that  portion  of  the  plaintiff's  railroad  which 
was  formerly  the  Charlestown  Branch  Railroad,  and  from  Groton  to 
Charlestown  over  that  portion  which  has  always  been  known  as  the 
Fitchburg  Railroad.     The  case  was  referred  to  an  auditor,  to  whose 

1  See  Denton  v.  Great  Northern  Ey.,  5  E.  &  B.  860.  —Ed. 


riTCHBURG    RAILROAD    V.    GAGE.  185 

report  the  defendants  took  exceptions  presenting  pure  questions  of  la^, 
and  was  thereupon  reserved  bj-  Bifjelow,J.,  for  the  consideration  of  the 
whole  court,  and  is  stated  in  the  opinion. 

/S.  Bartlett  &  D.  Thaxtei^  for  the  defendants. 

R.  Choate  S  H.  C  Ilutchins,  for  the  plaintiffs. 

Merrick,  J.  This  action  is  brought  to  recover  the  balance  of  the 
account  annexed  to  the  writ.  The  defendants  admit  the  transportation 
for  them  of  all  the  ice  charged  to  them  in  the  account,  and  that  the  sev- 
eral items  contained  in  it  relative  to  the  service  performed  for  them  are 
correct.  But  the}'  insist  that  the  rate  of  compensation  claimed  is  too 
large,  and  tliat  the  charges  ought  to  be  reduced.  They  have  also  filed 
an  account  in  set-off,  claiming  to  recover  back  the  amount  of  an  alleged 
overpayment  made  by  them  for  similar  services  in  the  transportation  of 
other  quantities  of  ice  belonging  to  them. 

Their  claim  to  be  entitled  to  a  diminution  in  the  amount  of  charges 
in  the  plaintiffs'  account,  and  to  a  recovery  of  the  sum  stated  in  their 
account  in  set-off,  both  rest  upon  the  same  ground.  The}'  contended 
and  offered  to  prove  at  the  hearing  before  the  auditor,  that  while  the 
plaintiffs  were  transporting  the  ice  they  were  at  the  same  time  hauling 
over  the  same  portion  of  their  road  various  quantities  of  bricks  for  other 
parties  ;  that  ice  and  bricks  were  of  the  same  class  of  freight,  and  that 
ice  was  as  low  a  class  of  freight  as  bricks  in  regard  to  the  risk  and 
hazard  of  transportation  ;  and  that  while  they  charged  the  defendants 
fiftv  cents  per  ton  for  the  transportation  of  ice,  they  charged  other  par- 
ties only  twenty  cents  per  ton  for  a  like  service  in  reference  to  bricks. 

The  defendants  contended  that  they  were  entitled  to  maintain  their 
claim  upon  two  grounds  :  first,  under  the  provisions  in  the  plaintiffs' 
act  of  incorporation  ;  and,  secondly,  upon  the  general  principle  that  as 
common  carriers  they  were  bound  and  required  to  transport  every  species 
of  freight  of  the  same  class  for  any  and  all  parties  at  the  same  rate  of 
compensation  ;  and  that  they  had  therefore  no  right  to  charge  any  greater 
sum  for  the  transportation  of  ice  than  that  for  which  they  had  actually 
carried  bricks  for  other  parties.  Neither  of  the  claims  was  sustained  by 
the  auditor,  and  he  accordingly  rejected  the  evidence  offered  in  support 
of  them.     In  both  particulars  we  think  his  ruling  was  correct.-^ 

It  is  contended  on  behalf  of  the  defendants  that  the  plaintiffs  were 
common  carriers  ;  and  that  by  the  principles  of  the  common  law  they 
are  in  that  relation  required  to  carry  merchandise  and  other  goods  or 
chattels  of  the  same  class  at  equal  rates  for  the  public  and  for  each  in 
dividual  on  whose  account  service  in  this  line  of  business  is  performed. 
There  is  no  doubt  they  are  common  carriers.  That  is  fully  established. 
Thomas  v.  Boston  &  Providence  Railroad,  10  Met.  472.  Norway, 
Plains  Co.  v.  Boston  &  Maine  Railroad,  1  Gray,  263.  But  by  the  law 
of  this  Commonwealth  every  railroad  corporation  is  authorized  to  estab- 
lish for  their  sole  benefit  a  toll  upon  all  passengers  and  property 
conveyed  or  transported  on  their  railroad,  at  such  rates  as  may  be  de- 
'  The  decision  upon  the  first  ground  is  omitted.  —  Ed. 


186  FITCHBURG   KAILROAD   V.    GAGE. 

termined  b}-  the  directors.  Eev.  Sts.  c.  39,  §  83.  This  right  however 
is  very  fully,  find  reasonably,  subjected  to  legislative  supervision  and 
control ;  a  provision  which  maj'  be  believed  to  be  sufficient  to  guard 
this  large  conceded  power  against  all  injustice  or  abuse.  And  in  view 
of  this  large  and  unqualified,  and  therefore  adequate  supervision,  the 
riglit  of  railroad  corporations  to  exact  compensation  for  services  ren- 
dered raa^-  be  considered  as  conforming  substantiall}'  to  the  rule  of  tiie 
common  law  upon  the  same  subject.  This  rule  is  clearh'  stated  b}' 
Lawrence,  J.,  in  the  case  of  Harris  v.  Packwood,  3  Taunt.  272:  "I 
would  not,  however,  have  it  understood  that  carriers  are  at  libert}'  bj' 
law  to  charge  whatever  the}'  please  ;  a  carrier  is  liable  b^'  law  to  carry 
everything  which  is  brought  to  him,  for  a  reasonable  sum  to  be  paid  to 
him  for  the  same  carriage  ;  and  not  to  extort  what  he  will."  This  is 
the  doctrine  of  the  common  law.  2  Kent  Com.  (6th  ed.)  599.  Angell 
on  Carriers,  §  124.  And  it  supplies  substantially  the  same  rule  which 
is  recognized  and  established  in  tliis  Commonwealth  by  the  provisions  of 
St.  1845,  c.  191.  The  recent  English  cases,  cited  bv  the  counsel  for 
the  defendants,  are  chief!}'  commentaries  upon  the  special  legislation  of 
Parliament  regulating  the  transportation  of  freight  on  railroads  con- 
structed under  the  authoritv  of  the  government  there  ;  and  consequently 
throw  very  little  light  upon  questions  concerning  the  general  rights  and 
duties  of  common  carriers,  and  are  for  that  reason  not  to  be  regarded 
as  authoritative  expositions  of  the  common  law  upon  those  subjects. 
The  principle  derived  from  that  source  is  very  plain  and  simple.  It 
requires  equal  justice  to  all.  But  the  equality  which  is  to  be  observed 
in  relation  to  the  public  and  to  every  individual  consists  in  the  re- 
stricted right  to  charge,  in  each  particular  case  of  service,  a  reasonable 
compensation,  and  no  more.  If  the  carrier  confines  himself  to  this,  no 
wrong  can  be  done,  and  no  cause  afforded  for  complaint.  If,  for  special 
reasons,  in  isolated  cases,  the  carrier  sees  fit  to  stii)ulate  for  the  car- 
riage of  goods  or  merchandise  of  an}'  class  for  individuals  for  a  certain 
time  or  in  certain  quantities  for  less  compensation  than  what  is  the 
usual,  necessar}',  and  reasonable  rate,  he  ma}'  undoubtedly  do  so  with- 
out thereby  entitling  all  other  persons  and  parties  to  the  same  advantage 
and  relief.  It  could  of  course  make  no  difference  whether  such  a  con- 
cession was  in  relation  to  articles  of  the  same  kind  or  belonging  to  the 
same  general  class  as  to  risk  and  cost  of  transportation.  The  defend- 
ants do  not  deny  that  the  charge  made  on  them  for  the  transportation 
of  their  ice  was  according  to  the  rates  established  by  the  directors  of 
the  company,  or  assert  that  the  compensation  claimed  is  in  any  degree 
excessive  or  unreasonable.  Certainly  then  the  charges  of  the  plaintiffs 
should  be  considered  legal  as  well  as  just ;  nor  can  the  defendants  have 
any  real  or  equitable  right  to  insist  upon  any  abatement  or  deduction, 
because  for  special  reasons,  which  are  not  known  and  cannot  therefore 
be  appreciated,  allowances  may  have  been  conceded  in  particular  in- 
stances, or  in  reference  to  a  particular  series  of  services,  to  other 
parties. 


MESSENGER   V.   PENNSYLVANIA   RAILROAD    CO.  187 

There  remains  another  question,  the  determination  of  which  depends 
upon  other  and  different  considerations.  Tlie  auditor,  for  tlie  purpose 
of  presenting  the  question  to  tlie  determination  of  the  court,  rejected 
evidence  offered  by  the  defendants  tending  to  prove  that  prior  to  the 
22d  of  February,  1855,  and  down  to  that  time,  tlie  plaintiffs  had  trans- 
ported for  them  large  quantities  of  ice  from  Groton  at  a  much  less  rate 
of  compensation  than  the  amount  charged  in  their  account  under  date 
of  the  31st  Januar}-  of  that  year,  without  having  given  them  notice,  and 
without  their  knowledge,  of  an}-  intention  to  increase  tlie  charge  for 
such  service.  This  evidence  was  I'ejected,  for  the  reason  that  the  direc- 
tors of  the  plaintiff  corporation  had,  prior  to  the  transportation  of  the 
ice  in  the  last  named  item,  fixed  and  raised  the  rate  of  trans[)ortation  of 
ice  on  their  road  from  Groton  to  ninety  cents  per  ton.  This  evidence 
ought  to  have  been  received.  In  the  absence  of  any  special  contract  be- 
tween the  parties,  it  had  a  tendency  to  show  what  was  the  understand- 
ing between  the  parties  on  the  suliject,  and  what  the  defendants  had  a 
right  to  consider  would  be  the  price  to  be  charged  to  them  for  services 
performed  in  their  behalf.  If  not  controlled,  it  would  and  ouglit  to 
have  had  a  material  effect  upon  determining  the  question  concerning 
the  compensation  which  the  plaintiffs  were  entitled  to  recover.  It  might 
have  been  controlled  either  by  showing  that  the  defendants  did  in  fact 
have  notice  of  the  new  rate  of  charge  established  by  the  directors  of  the 
compan}',  or  that  the  notice  was  communicated  generally  to  all  persons, 
in  the  usual  and  ordinaiy  manner,  and  with  such  degree  of  publicity  that 
all  persons  dealing  with  them  might  fairly  be  presumed  to  have  cog- 
nizance of  the  change. 

In  this  particular  therefore  the  exception  to  the  ruling  of  the  auditor 
must  be  sustained  ;  in  all  others,  the  exceptions  taken  to  his  decisions 
are  overruled. 

The  case  must  therefore  be  recommitted  to  the  auditor  for  the  pur- 
pose of  hearing  the  evidence  rejected,  and  any  other  proofs  which  the 
parties  may  respectively  produce  relative  to  the  items  of  charge  under 
date  of  JanuaiT  31st,  and  finding  the  amount  which  is  due  for  the  ser- 
vices there  stated  ;   but  for  no  other  purpose  whatever. 

£Jxceptions  sustained. 


MESSENGER   v.   PENNSYLVANIA   RAILROAD   COMPANY. 

Supreme  Court  of  New  Jersey,  1873. 
Court  of  Errors  and  Appeals  of  New  Jkrsey,  1874. 

[7   Vroom  (36  N.  J.  L.),  407  ,  8  Vroom  (37  N.  J.  L),53L] 

Beasley,  C.  J.  The  Pennsylvania  Railroad  Compan}',  who  are  the 
defendants  in  this  action,  agreed  with  the  plaintiffs  to  carrj-  certain 
merchandise  for  them,  between  certain  termini,  at  a  fixed  rate  less  than 
they  should  carry  between  the  same  points  for  any  other  person.  The 
allegation  is,  that  goods  have  been  carried  for  other  parties  at  a  certain 


188  MESSENGER   V.    PENNSYLVANIA    RAILROAD    CO. 

rate  below  what  the  goods  of  the  plaintiffs  have  been  carried,  and  this 
suit  is  to  enforce  the  foregoing  stipulation.  The  question  is,  whether 
the  agreement  thus  forming  the  foundation  of  the  suit  is  legal. 

There  can  be  no  doubt  that  an  agreement  of  this  kind  is  calculated  to 
give  an  important  advantage  to  one  dealer  over  other  dealers,  and  it  is 
equally  clear  that,  if  the  power  to  make  the  present  engagement  exists, 
man\-  branches  of  business  are  at  the  mercy  of  these  companies.  A 
merchant  who  can  transport  his  wares  to  market  at  a  less  cost  than  his 
rivals,  will  soon  acquire,  by  underselling  them,  a  practical  monopoly  of 
the  business  ;  and  it  is  obvious,  that  this  result  can  often  be  brought 
about  if  the  rule  is,  as  the  plaintiffs  contend  that  it  is,  that  tliese 
bargains  giving  preferences  can  be  made.  A  railroad  is  not,  in 
general,  subject  to  much  competition  in  the  business  between  its 
termini ;  the  difficulty  in  getting  a  charter,  and  tlie  immense  ex- 
pense in  building  and  equipping  a  road,  leaves  it,  in  tlie  main, 
without  a  rival  in  the  field  of  its  operation ;  and  the  consequence 
is,  tlie  trader  who  can  transmit  his  merchandise  over  it  on  terms  more 
favorable  than  others  can  obtain  is  in  a  fair  way  of  ruling  the  market. 
The  tendency  of  such  compacts  is  adverse  to  the  public  welfare,  which 
is  materially  dependent  on  commercial  competition  and  the  absence  of 
monopolies.  Consequent!}',  the  inquiry  is  of  moment,  whether  such 
compacts  may  be  made.  I  have  examined  the  cases,  and  none  that  I 
have  seen  is,  in  all  respects,  in  point,  so  that  the  problem  is  to  be  solved 
by  a  recurrence  to  the  general  principles  of  the  law. 

The  defendants  are  common  carriers,  and  it  is  contended  that  bailees 
of  that  character  cannot  give  a  preference  in  the  exercise  of  their  call- 
ing to  one  dealer  over  another.  It  cannot  be  denied,  that  at  the  com- 
mon law,  ever}'  person,  under  identical  conditions,  had  an  equal  right  to 
the  services  of  their  connnercial  agents.  It  was  one  of  the  primary 
obligations  of  the  common  carrier  to  receive  and  carry  all  goods  offered 
for  transportation,  upon  receiving  a  reasonable  hire.  If  he  refused  the 
offer  of  such  goods,  he  was  liable  to  an  action,  unless  he  could  show  a 
reasonable  ground  for  his  refusal.  Thus,  in  the  ver}'  foundation  and 
substance  of  the  business,  there  was  inherent  a  rule  which  excluded  a 
preference  of  one  consignor  of  goods  over  another.  The  duty  to  receive 
and  carr}'  was  due  to  every  member  of  the  comnnmit}',  and  in  an  equal 
measure  to  each.  Nothing  can  be  clearer  than  that,  under  the  preva- 
lence of  this  principle,  a  common  carrier  could  not  agree  to  caiiy  one 
man's  goods  in  preference  to  those  of  another. 

It  is  important  to  remark,  that  this  obligation  of  this  class  of  bailees 
is  always  said  to  arise  out  of  the  character  of  the  business.  Sir  William 
Jones,  importing  the  expression  from  the  older  reports,  declares  that 
this,  as  well  as  the  other  peculiar  responsibilities  of  the  common  carrier, 
is  founded  in  the  consideration  that  the  calling  is  a  public  employment. 
Indeed,  the  compulsion  to  serve  all  that  applv  could  be  justified  in  no 
other  way,  as  the  right  to  accept  or  reject  an  ofl^er  of  business  is  neces- 
sarily incident  to  all  private  traffic. 


MESSENGER   V.    PENNSYLVANIA    KAILROAD    CO.  189 

Recognizing  this  as  the  settled  doctrine,  I  am  not  able  to  see  how  it 
can  be  admissible  for  a  common  carrier  to  demand  a  ditlerent  hire  from 
A'arioiis  persons  for  an  identical  kind  of  service,  nnder  identical  condi- 
tions. Such  partiality  is  legitimate  in  private  business,  but  how  can  it 
square  with  the  obligations  of  a  public  employment?  A  person  having 
a  [)ul)lic  duty  to  discharge,  is  undoubtedly  bound  to  exercise  such  ollice 
for  tlie  equal  benefit  of  all,  and  therefore  to  permit  the  common  carrier 
to  charge  various  prices,  according  to  the  person  with  whom  he  tteals, 
for  the  same  services,  is  to  forget  tiiat  he  owes  a  duty  to  the  comnninily. 
If  he  exacts  different  rates  for  the  carriage  of  goods  of  the  same  kind, 
between  the  same  points,  he  violates,  as  plainly,  though  it  may  be  not 
in  the  same  degree,  the  principle  of  public  policy  which,  in  his  own  de- 
s[)ite,  converts  his  business  into  a  public  employment.  Tlie  law  that 
forbids  him  to  make  any  discrimination  in  favor  of  tlie  goods  of  A  over 
the  goods  of  B,  when  the  goods  of  both  are  tendered  for  carriage,  must, 
it  seems  to  me,  necessarily  forbid  any  discrimination  with  respect  to  the 
rate  of  pay  for  the  carriage.  I  can  see  no  reason  why,  under  legal 
rules,  perfect  equality  to  all  persons  should  be  exacted  in  tlie  deahngs 
of  the  common  carrier,  except  with  regard  to  the  amount  of  compensa- 
tion for  his  services.  The  rules  that  the  carrier  shall  receive  all  the 
goods  tendered  loses  half  its  value,  as  a  politic  regulation,  if  the  cost 
of  transportation  can  be  graduated  by  special  agreement  so  as  to  favor 
one  party  at  the  expense  of  others.  Nor  would  this  defect  in  tlie  law, 
if  it  existed,  be  remedied  by  the  principle  which  compels  the  carrier  to 
take  a  reasonable  hire  for  his  labor,  because,  if  the  rate  charged  In'  him 
to  one  person  might  be  deemed  reasonable,  by  charging  a  lesser  price 
to  another  for  similar  services,  he  disturbs  that  equality  of  rights  among 
his  employers  which  it  is  the  endeavor  of  the  law  to  effect.  Indeed, 
when  a  charge  is  made  to  one  person,  and  a  lesser  charge,  for  precisely 
the  same  offices,  to  another,  I  think  it  should  be  held  that  the  higher 
charge  is  not  reasonable;  a  presumption  which  would  cut  up  by  the 
roots  the  present  agreement,  as,  by  the  operation  of  this  rule,  it  would 
be  a  promise  founded  on  the  supposition  that  some  other  person  is  to 
be  charged  more  than  the  law  warrants. 

From  these  considerations,  it  seems  to  me,  that  testing  the  duties  of 
this  class  of  bailees  by  the  standard  of  the  ancient  princii)les  of  the  law, 
the  agreement  now  under  examination  cannot  be  sanctioned.  This  is 
the  sense  in  which  Mr.  Smith  understands  the  common  lavp-  rule.  In 
his  Leading  Cases,  p.  174,  speaking  of  the  liabilities  of  carriers,  he  says  : 
"  The  hire  charged  must  be  no  more  than  a  reasonable  remuneration 
to  the  carrier,  and,  consequently,  not  more  to  one  (though  a  rival  car- 
rier) than  to  another,  for  the  same  service."  I  am  aware,  that  in  the 
case  of  Baxendale  r.  The  Eastern  Counties  Railway,  4  C.  B.  (N.  S.) 
81,  this  definition  of  the  common  law  rule  was  criticised  by  one  of  the 
judges,  but  the  subject  was  not  important  in  that  case,  and  was  not 
discussed,  and  the  expression  of  oi)inion  with  respect  to  it  was  entirely 
cursoiy.     Indeed,  the  whole  question  has  become  of  no  moment  in  the 


190        MESSENGEK  V.    PENNSYLVANIA  RAILEOAD  CO. 

English  law,  as  the  subject  is  specifically  regulated  by  the  statute  17 
and  18  V^ict.,  ch.  31,  which  prohibits  the  giving  "  of  an}'  undue  or  un- 
reasonable preterence  or  advantage  to  or  in  favor  of  any  particular  per^ 
S(^n  or  company,  or  any  particular  description  of  traffic,  in  any  respect 
whatsoever."  The  date  of  this  act  is  1854,  and  since  that  lime  the 
decisions  of  tlie  courts  of  Westminster  have,  when  discussing  this  class 
of  the  responsibilities  of  common  carriers,  been  devoted  to  its  exposi- 
tion. But  the  courts  of  Pennsylvania  have  repeatedly  declared  that 
this  act  was  but  declai'atory  of  the  doctrine  of  the  common  law.  This 
was  so  held  in  the  case  of  Sandford  v.  The  Catawissa,  WilHamsport,  & 
Erie  Railroad  Co.,  24  Penn.  378,  in  which  an  agreement  by  a  railway 
company  to  give  an  express  company  the  exclusive  right  to  carry  goods 
in  certain  trains  was  pronounced  to  be  illegal.  In  a  more  recent  de- 
cision, Mr.  Justice  Sticffig  refers  to  this  case  with  approval,  and  says 
that  the  special  provisions  which  are  sometimes  inserted  in  railroad 
charters,  in  restraint  of  undue  preferences,  are  "  but  declaratory  of 
what  the  common  law  now  is."  This  is  the  view  which,  for  the  reasons 
alreadj'  given,  I  deem  correct. 

But  even  if  this  result  could  not  be  reached  l\y  fair  induction  from  the 
ancient  principles  which  regulate  the  relationship  between  this  class  of 
bailees  and  their  employers,  I  should  still  be  of  opinion  that  we  would 
be  necessaril}'  led  to  it  by  another  consideration. 

I  have  insisted  that  a  common  carrier  was  to  be  regarded,  to  some 
extent  at  least,  as  clothed  with  a  public  capacity,  and  1  now  maintain, 
that  even  if  this  theory  should  be  rejected,  and  thrown  out  of  the  argu- 
ment, still  the  defendants  must  be  considered  as  invested  with  that  at- 
tribute. In  ni}-  opinion,  a  railroad  company,  constituted  under  statutory 
authority,  is  not  only,  by  force  of  its  inherent  nature,  a  common  carrier, 
as  was  held  in  the  case  of  Palmer  v.  Grand  Junction  Railway,  4  M.  & 
W.  749,  but  it  becomes  an  agent  of  the  public  in  consequeuce  of  the 
powers  conferred  upon  it.  A  company  of  this  kind  is  invested  with 
important  prerogative  franchises,  among  which  are  the  rights  to  build 
and  use  a  railway,  and  to  charge  and  take  tolls  and  fares.  These  pre- 
rogatives are  grants  from  the  government,  and  public  utility  is  the  con- 
sideration for  them.  Although  in  the  hands  of  a  private  corporation, 
they  are  still  sovereign  franchises,  and  must  be  used  and  treated  as 
such  ;  they  must  be  held  in  trust  for  the  general  good.  If  they  had 
remained  under  the  control  of  the  state,  it  could  not  be  pretended,  that 
in  the  exercise  of  them  it  would  have  been  legitimate  to  favor  one  citi- 
zen at  the  expense  of  another.  If  a  state  should  build  and  operate  a 
railroad,  the  exclusion  of  everything  like  favoritism  with  respect  to  its  use 
would  seem  to  be  an  obligation  that  could  not  be  -disregarded  without 
violating  natural  equity  and  fundamental  principles.  And  it  seems  to 
me  impossible  to  concede,  that  when  such  rights  as  these  are  handed 
over,  on  public  considerations,  to  a  company  of  individuals,  such  rights 
lose  their  essential  cliaractei-istics.  I  think  they  are,  unalterably,  parts 
of  the  supreme  authority,  and  in  whatsoever  hands  they  may  be  found, 


MESSENGER   V.    PENNSYLVANIA    RAILROAD    CO.  191 

they  must  be  considered  as  such.  In  tlie  use  of  such  franchises,  all  citi- 
zens have  an  equal  interest  and  equal  rights,  and  all  must,  under  the  same 
circumstances,  be  treated  alike.  It  cannot  be  supposed  that  it  was  the 
legislative  intention,  when  such  privileges  were  given,  that  they  were  to 
be  used  as  private  property,  at  the  discretion  of  the  recipient,  but,  to 
the  contrary  of  this,  I  think  an  implied  condition  attaches  to  such 
grants,  that  the}'  are  to  be  held  as  a  quasi  pul)lic  trust  for  the  benefit, 
at  least  to  a  considerable  degree,  of  the  entire  community.  In  their 
very  nature  and  constitution,  as  I  view  this  question,  these  companies 
become,  in  certain  aspects,  public  agents,  and  the  consequence  is,  they 
must,  in  the  exercise  of  their  calling,  ol)serve  to  all  men  a  perfect  im- 
partiality. On  these  grounds,  the  contract  now  in  suit  must  be  deemed 
illegal  in  the  very  particular  on  which  a  recovery  is  sought. 

The  result  is,  the  defendants  must  liave  judgment  on  the  demurrer. 

In  tire  Court  of  Errors  and  Appeals,  on  error  to  the  Supreme  Court, 
the  opinion  of  the  Court  was  delivered  by 

Beule,  J.^  The  business  of  the  common  carrier  is  for  the  public,  and 
it  is  his  dut}'  to  serve  the  public  indifferentl}'.  He  is  entitled  to  a  rea- 
sonable compensation,  but  on  payment  of  that  he  is  bound  to  carr}'  for 
whoever  will  emplo}'  him,  to  the  extent  of  his  ability.  A  private  carrier 
can  make  what  contract  he  pleases.  The  public  have  no  interest  in 
that,  but  a  service  for  the  public  necessarily  implies  equal  treatment  in 
its  performance,  when  the  right  to  the  service  is  common.  Because 
the  institution,  so  to  speak,  is  public,  ever}'  member  of  the  community 
stands  on  an  equality  as  to  the  right  to  its  benefit,  and,  therefore,  the 
carrier  cannot  discriminate  between  individuals  for  whom  he  will  render 
the  service.  In  the  very  nature,  then,  of  his  duty  and  of  the  public 
right,  his  conduct  should  be  equal  and  just  to  all.  So,  also,  there  is 
involved  in  the  reasonableness  of  his  compensation  the  same  principle. 
A  want  of  uniformity  in  price  for  the  same  kind  of  service  under  like 
circumstances  is  most  unreasonable  and  unjust,  when  the  right  to  demand 
it  is  common.  It  would  be  strange  if,  when  the  object  of  the  employ- 
ment is  the  public  benefit,  and  the  law  allows  no  discrimination  as  to 
individual  customers,  but  requires  all  to  be  accommodated  alike  as  indi- 
viduals, and  for  a  reasonable  rate,  that  by  the  indirect  means  of  unequal 
prices  some  could  lawfully  get  the  advantage  of  the  accommodation  and 
others  not.  A  direct  refusal  to  carr\'  for  a  reasonable  rate  would  in- 
volve the  carrier  in  damages,  and  a  refusal,  in  effect,  could  be  accom- 
plished by  unfair  and  unequal  charges,  or  if  not  to  that  extent,  the 
public  right  to  the  convenience  and  usefulness  of  the  means  of  carriage 
could  be  greatly  impaired.  Besides,  the  injury  is  not  only  to  the  indi- 
vidual affected,  but  it  reaches  out,  disturbing  trade  most  seriously. 
Competition  in  trade  is  encouraged  by  the  law,  and  to  allow  any  one  to 
use  means  established  and  intended  for  the  public  good,  to  promote  un- 

^  Part  of  the  opiuion  is  omitted.  — Ed. 


V 


192  MESSENGER   V.    PENNSYLVANIA    EAILEOAD   CO. 

fair  advantages  amongst  the  people  and  foster  monopolies,  is  against 
piil)lic  policy,  and  should  not  be  permitted.   .   .   . 

It  must  not  be  inferred  that  a  common  carrier,  in  adjusting  his  price, 
cannot  regard  the  peculiar  circumstances  of  the  particular  transporta- 
tion. INIany  consiilerations  ma}-  properly  enter  into  the  agreement  for 
carriage  or  the  establishment  of  rates,  such  as  the  quantity  carried,  its 
nature,  risks,  the  expense  of  carriage  at  different  periods  of  time,  and 
the  like  ;  but  he  has  no  right  to  give  an  exclusive  advantage  or  prefer- 
ence, in  that  respect,  to  some  over  others,  for  carriage,  in  the  course  of 
his  l)usiness.  P^or  a  like  service,  the  public  are  entitled  to  a  like  price. 
There  may  be  isolated  exceptions  to  this  rule,  where  the  interest  of  the 
immediate  parties  is  alone  involved,  and  not  the  rest  of  the  public,  but 
the  rule  must  be  applied  whenever  the  service  of  the  carrier  is  sought 
or  agreed  for  in  the  range  of  business  or  trade.  This  contract  being 
clearly  witliin  it,  and  odious  to  the  law  in  the  respect  on  which  a  recover}' 
is  sought,  cannot  be  sustained.  But  there  is  an  additional  ground  upon 
wliich  it  is  also  objectionable.  I  entirel}-  agree  with  the  Chief  Justice, 
that,  in  the  grant  of  a  franchise  of  building  and  using  a  public  railway, 
that  there  is  an  implied  condition  that  it  is  held  as  a  qiiKsi  public  trust, 
for  the  benefit  of  all  the  public,  and  tliat  the  company  possessed  of  the 
grant  must  exercise  a  perfect  impartialit}-  to  all  who  seek  the  benefit  of 
the  trust.  It  is  true  that  these  railroad  corporations  are  private,  and, 
in  the  nature  of  their  business,  are  subject  to  and  bound  b}'  the  doc- 
trine of  common  carriers,  3et,  beyond  that,  and  in  a  peculiar  sense,  they 
are  intrusted  with  certain  functions  of  tlie  government,  in  order  to 
afford  the  public  necessary  means  of  transportation.  The  bestowment 
of  these  franchises  is  justified  onl}'  on  the  ground  of  the  public  good, 
and  the}'  must  be  held  and  enjoyed  for  that  end.  This  public  good  is 
common,  and  unequal  and  unjust  favors  are  entirely  inconsistent  with 
the  common  right.  So  far  as  their  duty  to  serve  the  public  is  concerned, 
they  are  not  only  common  cari'iers,  but  public  agents,  and  in  their  A'ery 
constitution  and  relation  to  the  public,  there  is  necessarily  implied  a 
duty  on  their  part,  and  a  rigiit  in  the  public,  to  have  fair  treatment  and 
immunity  from  unjust  discrimination.  The  right  of  the  public  is  equal 
in  every  citizen,  and  the  trust  must  be  performed  so  as  to  secure  and 
protect  it. 

Every  trust  should  be  administered  so  as  to  aflford  to  the  cestui  que 
trust  the  enjoyment  of  the  use  intended,  and  these  railroad  trustees 
must  be  held,  in  their  relation  to  the  public,  to  such  a  course  of  dealing 
as  will  insure  to  every  member  of  the  community  the  equal  enjoyment 
of  the  means  of  transportation  provided,  subject,  of  course,  to  tlicir 
reasonable  ability  to  perform  the  trust.  In  no  other  way  can  trade  and 
commercial  interchange  be  left  free  from  unjust  interference.  On  this 
latter  ground,  that  part  of  the  contract  in  question  is  illegal. 

The  judgment  of  the  Supreme  Court  must  be  affirmed.^ 

1  See  ace.  Scofield  v.  Lake  Shore  A.  M.  S.  R.  R.,  43  Ohio  St.  571.  In  this  case 
Athehton,  J.,  said  :  "  I  think  that  all  the  cases  that  have  been  referred  to  might  be 


318|   TONS   OF   GOAL.  193 


318^   TONS   OF   COAL. 

District  Court  of  the  United  States  (Conn.),  1877. 
Circuit  Court  of  the  United  States,  1878. 

[14  Blalch.  453.]! 

Libel  in  rem  for  freight  and  demurrage. 

The  libellants  carried  a  cargo  of  coal  to  New  Haven,  to  bo  delivered 
to  the  Glasgow  Co.  at  the  Canal  Railroad  Dock.  The  consignee  was 
located  near  the  line  of  the  railroad  in  Massachusetts.  It  was  the 
custom  of  the  port  for  coal,  thus  consigned  to  a  railroad  wharf,  to  be 
shovelled  from  the  hold  of  the  vessel  into  large  buckets,  let  down  and 
hauled  up  by  a  steam  derrick,  which  discharged  them  into  the  cars  of 
the  railroad.  Prior  to  1871,  the  shovellers  who  filled  the  buckets  had 
been  hired  and  paid  by  the  master  of  the  vessel.  In  that  year  the  Canal 
Railroad  Co.  made  a  rule  that  it  would  thereafter  supply  all  coal  vessels 
with  shovellers,  at  ten  cents  a  ton,  and  that  no  vessel  could  discharge 
except  by  using  shovellers  thus  supplied.  Ten  cents  a  ton  was  then 
the  ordinary  rate  of  wages  for  such  services,  but  in  187G  charges  of 
shovellers  fell,  and  they  could  be  hired  for  eight  cents.  The  libellants 
thereupon  hired  shovellers  at  eight  cents,  and  refused  to  receive  tliose 
furnished  b}'  the  compau}-,  unless  they  would  work  at  the  same  rate. 
The  company  for  this  cause  refused  to  allow  the  cargo  to  be  unloaded, 
and  it  was  discharged  at  a  neighl)oring  wharf,  after  some  delay,  and 
there  libelled, 

Shipman,  J.  If  the  rule  is  valid  and  reasonable,  there  was  no  de- 
livery of  the  coal.  If  tlie  rule  is  invalid  or  unreasonable,  there  was  a 
deliveiy,  or  its  equivalent,  an  offer  and  tender  of  delivery  to  the  person 
entitled  to  receive  the  coal,  at  the  usual  and  reasonable  time  and  place, 
and  in  the  reasonable  manner  of  delivery,  and  a  refusal  to  accept  on 
the  part  of  the  railroad  company.  In  the  latter  event,  the  contract  of 
affreightment  was  complied  with  by  the  libellants,  and  freight  was 
earned.  No  question  was  made  as  to  the  liabilit}'  of  the  defendants 
under  the  bill  of  lading,  for  freight,  in  case  the  railroad  company  im- 
properly refused  to  receive  the  coal.  The  bill  of  lading  required  de- 
livery to  the  defendants  at  the  Canal  Dock.  It  is  admitted  that  the 
compan}-,  upon  notification  that  the  coal  was  ready  to  be  discharged, 

harmonized  by  observing  the  distinction  so  often  alluded  to,  that  is  to  say  that  as 
between  a  consignor  and  the  common  carrier,  where  no  other  reason  intervenes  to 
engraft  an  exception  on  the  rule,  all  the  consignor  can  demand  of  the  common  carrier 
is,  that  his  goods  shall  be  carried  at  a  reasonable  rate,  not  necessarily  at  an  equal  rate 
with  all  others.  But  when  the  reduced  rate  is  either  intended  to  or  has  a  natural 
tendency  to  injure  the  plaintiff  in  his  business  and  destroy  his  trade,  then  a  necessary 
exception  is  engrafted  on  the  more  general  rule,  and  the  plaintiff  has  then  the  right 
to  insist  that  rates  to  all  be  made  the  same  for  goods  shipped  '  under  like  circum- 
stances.' " —  Ed. 

1  The  statement  of  facts  is  taken  from  the  report  of  the  same  case,  4  Law  &  Equity 
Reporter,  105,  and  part  of  the  opinion  of  Shipman,  J.,  is  omitted.  —  Ed. 

13 


194  3181   TONS    OF   COAL. 

replied  that  said  cargo  might  be  forthwith  discharged,  and  would  be 
received  b}-  it  for  the  defendants. 

The  railroad  company  is  not  merely  an  owner  of  a  private  wharf, 
having  restricted  duties  to  perform  towards  the  public.  Such  a  wharf 
owner  may  properly  construct  his  wharf  for  particular  kinds  of  business, 
and  ma}'  make  rules  to  limit  and  to  restrict  the  manner  in  which  his 
proi)erty  shall  be  used  ;  (Croucher  v.  Wilder,  98  Mass.  322  ;)  but  the 
railroad  company'  is  a  common  carrier,  and  its  wharf,  occupied  by  rail- 
road tracks,  is  tlie  place  provided  by  itself  for  the  reception  of  goods 
which  must  be  received  and  transported,  in  order  to  comply  with  its 
public  obligations.  The  coal  was  to  be  received  from  the  vessel  hy  the 
railroad  company,  as  the  carrier  next  in  line,  and  thence  carried  to  its 
place  of  destination.  The  question  which  is  at  issue  between  the  par- 
ties depends  upon  the  power  of  a  common  carrier  to  establish  rules 
which  shall  prescribe  by  what  particular  persons  goods  shall  be  deliv- 
ered to  him  for  transportation.  "Common  carriers  undertake  generally, 
and  not  as  a  casual  occupation,  and  for  all  people  indifferently,  to  con- 
vey goods  and  deliver  them  at  a  place  appointed,  for  hire,  as  a  business, 
and  with  or  without  a  special  agreement  as  to  price.  .  .  .  As  they  hold 
themselves  to  the  world  as  common  carriers  for  a  reasonable  compen- 
sation, they  assume  to  do,  and  are  bound  to  do,  what  is  required  of 
them  in  the  course  of  their  employment,  if  they  have  the  requisite  con- 
venience to  carry,  and  are  offered  a  reasonable  or  customary  price  ; 
and,  if  they  refuse,  without  some  just  ground,  they  are  liable  to  an 
action."  (2  Kent's  Comm.  599.)  A  common  carrier  is  under  an  obli- 
gation to  accept,  within  reasonable  limits,  ordinary  goods  which  nia^' 
be  tendered  to  him  for  carriage  at  reasonable  times,  for  which  he  has 
accommodation.  (Crouch  v.  L.  &  N.  W.  Railway  Co.,  14  C.  B.  255.) 
The  carrier  cannot  generally  discriminate  between  persons  who  tender 
freiglit,  and  exclude  a  particular  class  of  customers.  The  railroad 
company  could  not  establish  the  rule  that  it  w'ould  receive  coal  only 
from  certain  barge  owners,  or  from  a  particular  class  of  barge  captains. 
It  carries  "  for  all  people  indifferently."  But,  while  admitting  this 
duty,  the  compan}'  has  declared  that,  for  the  convenience  of  the  public, 
and  in  order  to  transport  coal  more  expeditiousl}',  and  to  avoid  delays, 
it  will  receive  such  coal  onl}',  from  barges  at  its  wharf,  as  sliall  be  de- 
livered through  the  agency  of  laborers  selected  by  the  company.  This 
rule  is  a  restriction  upon  its  common  law  obligation.  The  carrier,  on 
its  part,  is  bound  to  receive  goods  from  all  i)ersons  alike.  The  duty 
and  the  labor  of  deliver^'  to  the  carrier  is  imposed  upon  the  barge 
owner,  who  pays  for  the  necessary  labor.  The  service,  so  far  as  the 
shovelling  is  concerned,  is  performed,  not  upon  the  property  of  the 
railroad  company,  but  upon  the  deck  of  the  vessel.  The  compan}'  is 
virtually  saying  to  the  barge  owner,  You  shall  employ  upon  your  own 
property,  in  the  service  which  you  are  bound  to  render,  and  for  which 
lyou  must  pay,  only  the  laborers  whom  we  designate,  and,  though  our 
_^eaeral, duty  is  to.  receive  all  ordinary  goods  delivered   at  reasonable 


318^   TONS    OF   COAL.  195 

times,  we  will  receive  onl\-  those  goods  which  ma}'  be  handled  b}-  per- 
sons of  our  selection.  The  law  relating  to  carriers  has  not  \et  permitted 
them  to  impose  such  limitations  upon  the  reception  or  accc[)tance  of 
goods.  The  carrier  may  pioperly  impose  reasonable  restrictions  in  re- 
gard to  the  persons  by  whom  he  shall  deliver  goods  to  tlie  consignee 
or  the  carrier  next  in  line.  The  delivery  of  goods  is  the  duty  ol  the 
carrier,  for  which  he  is  responsible,  and  should  be  in  his  own  control. 
(Beadell  v.  P^astern  Counties  R.  Co.,  2  C.  B.  N.  8.  509.)  It  would  not 
Ije  contended  tliat  the  railroad  company  could  designate  the  crew  ui)on 
the  barge,  or  could  select  tlie  barge  captains,  and  I  am  of  opinion  tiiat 
it  has  no  more  authority  over  the  selection  of  the  other  employees  of 
the  barge  owners.  The  fact  that  the  barge  owners  are  using,  for  a 
compensation,  the  derricks  and  tubs  of  the  railroad  company,  is  not 
material.  The  berths  under  the  derricks  have  been  designated  by  the 
compau}',  as  proper  places  where  coal  is  to  be  received,  and,  under 
reasonable  circumstances  as  to  time,  and  freedom  from  interference 
with  prior  occupants,  the  incoming  l)arges  properly  occupy  such  posi- 
tions. Delivery  is  impracticable  at  the  places  designated  by  the 
company  for  deliver}',  without  the  use  of  the  railroad  company's 
machinery. 

It  is  true,  that,  under  this  rule,  the  deliver}'  of  coal  into  the  cars  of 
the  railroad  company  has  been  more  expeditiously  performed,  and  has 
been  attended  with  fewer  delays  than  formerly,  and  that  tlie  rule  has 
been  a  convenience  to  the  consignees,  but  the  convenience  of  the  prac- 
tice is  not,  of  itself,  an  adequate  reason  for  compelling  its  enforcement, 
if  it  interferes  with  the  legal  rights  of  others.  I  am  not  prepared  to 
say,  that,  for  the  orderly  management  of  an  extensive  through  freight- 
ing business  by  means  of  connecting  lines,  and  for  the  systematic  and 
efficient  transportation  of  immense  quantities  of  goods,  it  may  not 
hereafter  be  found  a  necessity  that  one  or  the  other  of  tlie  connecting 
lines  shall  be  furnished  with  the  power  which  is  now  sought  by  the  rail- 
road company  ;  but,  in  the  present  condition  of  the  coal  traffic  at  the 
port  of  New  Haven,  this  necessity  does  not  exist.  The  power  is  a 
convenience  to  the  railroad  company.  It  is  not  a  necessity  for  the 
transaction  of  business. 

It  is  not  necessary  to  consider  the  inconveniences  which  may  flow 
from  the  rule,  but  the  case  discloses  one  practical  inconvenience  which 
may  arise.  The  rule  presupposes  that  the  same  price  is  to  be  charged 
by  the  employees  furnished  by  the  railroad  company,  which  is  gener- 
ally paid  by  others  for  the  same  service.  When  prices  are  unvarying, 
no  serious  trouble  results.  There  is  no  alternative,  however,  for  the 
barge  owners,  but  to  pay  the  price  which  the  railroad  company  declares 
to  be  the  general  price,  or  else  submit  to  a  refusal  on  the  part  of  the 
railroad  company  to  accept  the  coal.  The  barge  captain  may  be  able 
to  obtain  the  service  at  a  reduced  rate,  as  he  could  have  done  in  this 
case,  but  he  must  pay  his  own  employees  the  regular  tariff  which  the 
company  has  established,  and  then  have  the  question  of  rates  deter- 


196  318i   TONS   OF   COAL. 

mined  by  litigation.  The  result  would  be,  that  annoying  litigation  or 
vexatious  altercations  would  ensue.  If  the  barge  owners  are  to  make 
the  payment,  they  should  have  an  opportunity  to  make  their  own  eon- 
tracts,  and  to  take  advantage  of  changes  in  the  price  of  labor. 

As  matter  of  law,  it  is  held  that  the  rule  is  invalid,  and  that  a  valid 
delivery  was  made  of  the  coal,  whereby  freight  was  earned  in  accord- 
ance with  the  terms  of  the  contract.  ''  Damages  in  the  nature  of 
demurrage  are  recoverable  for  detention  beyond  a  reasonable  time,  in 
unloading  only,  and  where  there  is  no  express  stipulation  to  pay 
demurrage."     (Wordin  v.  Bemis,  32  Conn,  268.) 

The  libellants  are  entitled  to  a  decree  for  the  freight  at  the  rate 
mentioned  in  the  bill  of  lading,  less  Sl9.5o,  the  amount  paid,  to  wit,  the 
sum  of  $171.55,  and  for  damages  in  the  nature  of  demurrage,  for  a 
detention  for  six  days,  being  $114.66. 

The  claimants  appealed. 

Simeon  E.  Baldtoin  and  William  K.  Townsend^  for  the  libellants. 

Johnson  T.  Piatt,  for  the  claimants. 

Blatchford,  J.  The  decision  of  this  case  in  the  District  Court  was 
placed  upon  the  ground  that  the  New  Haven  and  Northampton  Com 
pan_y,  as  a  common  carrier,  had  no  right  to  impose  on  the  canal-boat 
the  requirement  that  it  should,  as  a  condition  of  the  right  to  place  the 
coal  in  the  tubs  of  the  company,  attached  to  the  compan^^'s  derrick, 
emplo}',  to  place  it  there,  shovellers  designated  by  the  company,  and 
pa}'  such  shovellers  the  rate  of  compensation  fixed  by  the  company  for 
such  service.  It  is  contended,  in  this  court,  by  the  claimants,  that  the 
District  Court  ignored  the  status  of  the  compan}-  as  a  wharf  owner ; 
that  the  company,  as  the  owner  of  the  wharf,  had  the  right  to  make 
reasonable  rules  in  regard  to  the  use  of  the  wharf;  that  the  compan}' 
had  a  right,  by  statute,  to  exact  seven  cents  per  ton  for  coal  discharged 
at  its  wharf,  as  wharfage  ;  that  the  libellants'  boat  was  not  charged 
any  such  wharfage  ;  that  the  use  by  the  boat  of  the  facilities  provided 
by  the  company,  in  the  way  of  derricks,  hoisting  engines,  etc.,  is  the 
use  of  the  wharf;  that  all  which  the  company  did  was  to  refuse  to 
allow  the  boat  to  use  those  facilities,  and  thus  use  the  wharf,  unless  it 
would  permit  the  coal  to  be  shovelled  into  the  tubs  by  men  designated 
by  the  company  ;  and  that  tliis  was  only  a  reasonable  regulation  made 
by  the  company,  as  a  wharf  owner.  The  difficulty  with  this  view  of  tlie 
case  is,  that  the  regulation  was  not  sought  to  be  enforced,  in  fact,  as  a 
regulation  of  wharfage,  or  of  the  use  of  the  wliarf  by  the  boat.  There 
was  no  charge  made  against  the  boat  for  the  privilege  of  making  fast 
to  tlie  wharf;  and,  if  any  payment  was  to  be  made  for  the  use  of  tlie 
wharf,  by  depositing  the  coal  on  the  wliarf,  it  was  to  be  made  by  the 
claimants,  who  were  the  owners  of  the  coal  and  the  employers  of 
the  company.  According  to  the  well  understood  acceptation  of  a  bill  of 
lading  such  as  the  one  in  question  here,  where  the  coal  was  deliverable 
''  to  Glasgow  Co.,  Canal  Dock,  New  Haven," — the  Glasgow  Company 
being  a  mill  owner  at  a  place  on  the  line  of  the  railroad  company,  and 


HAYS  V.    THE  PENNSYLVANIA  COMPANY.  197 

the  latter  company  being  the  owner  of  the  Canal  Dock  at  New  Haven, 
with  its  tracks  running  to  and  on  the  dock,  and  having  derricks  and 
engines  for  hoisting  the  coal  in  tubs  from  the  deck  of  the  boat  to  the 
cars  on  the  tracks,  —  the  coal  was  delivered  by  the  boat  into  the  tubs, 
and  the  boat  paid  the  company  so  much  per  ton  for  hoisting  the  coal 
and  dumping  it  into  the  cars.  The  boat  had  nothing  to  do  with  paying 
anything  for  the  use  or  occupation  of  the  wharf  by  the  coal,  and  it  paitl 
separately  for  the  hoisting.  If  the  company  had  a  right  to  charge  tlie 
boat  for  tying  up  to,  and  using  the  spiles  on,  the  wharf,  no  such  charge 
was  made.  There  was,  therefore,  no  foundation  for  the  requirement  as 
to  the  shovellers,  in  any  relation  between  the  company  as  a  wharf  owner 
and  the  boat. 

The  imposition  of  tlie  requirement  by  the  claimants'  agent,  as  a 
common  carrier,  was  not  a  reasonable  one.  In  regard  to  this  I  concur 
entirely  with  the  views  of  the  District  Judge,  in  his  decision  in  the 
court  below.  He  found  that  the  regulation  was  not  a  necessary  one. 
If  it  had  been  necessary  and  indispensable,  it  would  have  been  reason- 
able. It  might,  indeed,  have  been  reasonable  without  being  necessary-. 
But,  to  be  reasonable,  it  mus  be  reasonable  as  respects  both  parties. 
In  the  present  case,  the  effect  of  the  requirement  was  to  impose  on  the 
boat  an  unnecessary  expense  of  two  cents  per  ton  of  coal,  for  shovelling 
into  the  tubs. 

There  must  be  a  decree  for  the  libellants,  in  affirmance  of  the  decree 
below,  with  costs. 


HAYS  V.   THE  PENNSYLVANIA  COMPANY. 

Circuit  Court  of  the  United  States,  N.  Ohio,  1882. 

[12  Fed.  309.] 

Baxter,  C.  J.  The  plaintiffs  were,  for  several  ^ears  next  before  the 
commencement  of  this  suit,  engaged  in  mining  coal  at  Salineville  and 
near  defendant's  road,  for  sale  in  the  Cleveland  market.  The}'  were 
wholly  dependent  on  the  defendant  for  transportation.  Their  com- 
plaint is  that  the  defendant  discriminated  against  them,  and  in  favor 
of  their  competitors  in  l)usiness,  in  the  rates  charged  for  carrying  coal 
from  Salineville  to  Cleveland.  But  the  defendant  travei-sed  this  allega- 
tion. The  issue  thus  made  was  tried  at  the  last  term  of  the  court, 
when  it  appeared  in  evidence  that  defendant's  regular  price  for  car- 
rying coal  between  the  points  mentioned,  in  1876,  was  $1.G0  per  ton, 
with  a  rebate  of  from  30  to  70  cents  per  ton  to  all  persons  or  com- 
panies shipping  5,000  tons  or  more  during  the  year,  — the  amount  of 
rebate  being  graduated  by  the  quantity  of  freight  furnished  b}'  each 
shipper.  Under  this  schedule  the  plaintiffs  were  required  to  pay 
higher  rates  on  the  coal  shipped  by  them  than  were  exacted  from 
other  and  rival  parties  who  shipped  larger  quantities.     But  the  defend- 


198  HAYS  V.    THE  PENNSYLVANIA  COMPANY. 

ant  contended,  if  the  discrimination  was  made  in  good  faith,  and  for 
the  purpose  of  stimulating  production  and  increasing  its  tonnage,  it 
was  both  reasonable  and  just,  and  within  the  discretion  confided  by 
law  to  ever}'  common  carrier.  The  court,  however,  entertained  the 
contrary  opinion,  and  instructed  the  jury  that  the  discrimination  com- 
plained of  and  proven,  as  above  stated,  was  contrary  to  law,  and  a 
wrong  to  plaintiffs,  for  which  they  were  entitled  to  recover  the  dam- 
ages resulting  to  tliem  therefrom,  to  wit,  tiie  amount  paid  by  the 
plaintiffs  to  the  defendant  for  the  transportation  of  their  coal  from 
Salineville  to  Cleveland  (with  interest  thereon)  in  excess  of  the  rates 
accorded  b}'  defendant  to  their  most  favored  competitors.  The  jury, 
under  these  instructions,  found  for  the  plaintiffs,  and  assessed  their 
damages  at  $4,585.  The  defendant  thereupon  moved  for  a  new  trial, 
on  the  ground  that  the  instructions  given  were  erroneous,  and  this  is 
the  question  we  are  now  called  on  to  decide.  If  the  instructions  are 
correct  the  defendant's  motion  must  be  overruled  ;  otherwise  a  new 
trial  ought  to  be  granted. 

A  reference  to  recognized  elementary  principles  will  aid  in  a  cor- 
rect solution  of  the  problem.     The  defendant  is  a  common  carrier  by 
rail.     Its  road,   thougli   owned  by  the   corporation,   was   nevertheless 
constructed    for  public    uses,   and   is,   in  a  qualified   sense,   a  public 
highwa}'.      Hence   ever3-bod3'  constituting   a   part  of  the    public,  for 
whose  benefit  it  was  autliorized,  is  entitled   to  an  equal  and  impar- 
tial participation  in  the  use  of  the  facilities  it  is  capable  of  atfuiding. 
Its  ownership  by  the  corporation  is  in  trust  as  well  for  the  public  as 
for  the  shareholders  ;    but  its  first  and   primary  obligation  is  to  the 
public.     We  need  not  recount  all  these  obligations.     It  is  enough  for 
present   purposes  to  say   that  the   defendant  has   no  right  to  make 
unreasonable   and    unjust   discriminations.      But  what  are   such   dis- 
criminations?     No  rule   can   be   formulated  with   sufficient  flexibilit}'' 
to  apply  to  every  case  that  may   arise.     It  may,   however,  be  said 
that  it  is  onl}^  when  the  discrimination  enures  to  the  undue  advantage 
of  one  man,  in  consequence  of  some  injustice  inflicted  on  another,  that 
the  law  intervenes  for  the  protection  of  the  latter.     Harmless  discrimi- 
nation may  be  indulged  in.     For  instance,  the  carrying  of  one  person, 
who  is  unable  to  pay  fare,  free,  is  no  injustice  to  other  passengers  who 
may  be  required  to  pa}'  the  reasonable  and  regular  rates  fixed  by  the 
company.     Nor  would   the   carrying  of  supplies   at   nominal  rates  to 
communities  scourged  by  disease,  or  rendered  destitute  by  floods  or 
other  casualty,  entitle  other  communities  to  have  their  supplies  carried 
at  the  same  rate.     It  is  the  custom,  we  believe,  for  railroad  companies 
to  carry  fertilizers  and  machinery  for  mining  and  manufacturing  pur- 
poses to  be  employed  along  the  lines  of  their  respective  roads  to  de- 
velop the  country  and  stimulate  productions,  as  a  means  of  insuring  a 
permanent  increase  of  their  business,  at  lower  rates  than  are  charged 
on  otlier  classes  of  freight,  because  such  discrimination,  while  ii  tends 
to  advance  the  interest  of  all,  works  no  injustice  to  an}'  one.     Freight 


UAYS  V.    THE  PENNSYLVANIA  COMPANY.  199 

carried  over  long  distances  may  also  be  carried  at  a  reasonably  less  rate 
per  mile  than  freight  transported  for  shorter  distances,  simi)ly  because 
it  costs  less  to  perform  the  service.  For  the  same  reason  passengers 
ma}'  be  divided  into  different  classes,  and  the  price  regulated  in  accord- 
ance with  the  accommodations  furnished  to  each,  because  it  costs  less 
to  carry  an  emigrant,  with  the  accommodations  furnislied  to  that  class, 
tlian  it  does  to  carry  an  occupant  of  a  palace  car.  And  for  a  like  reason' 
an  inferior  class  of  freight  may  be  carried  at  a  less  rate  tlian  first-class 
merchandise  of  greater  value  and  requiring  more  labor,  care,  and 
responsibilit}-  in  the  handling.  It  has  been  held  that  20  separate  par- 
cels done  up  in  one  package,  and  consigned  to  the  same  person,  may  be 
carried  at  a  less  rate  per  parcel  than  20  parcels  of  the  same  character 
consigned  to  as  man}'  different  persons  at  the  same  destination,  because 
it  is  supposed  tliat  it  costs  less  to  receive  and  deliver  one  package  con- 
taining 20  parcels  to  one  man,  than  it  does  to  receive  and  deliver  20 
different  parcels  to  as  many  different  consignees. 

Such  are  some  of  the  numerous  illustrations  of  the  rule  that  might 
be  given.  But  neither  of  them  is  exactly  like  the  case  before  us,  either 
in  its  facts  or  principles  involved.  Tlie  case  of  Nicholson  v.  G.  W.  R.  Co., 
4  C.  B.  (N.  S.)  366,  is  in  its  facts  more  nearly  like  the  case  under  con- 
sideration than  an}'  other  case  that  we  have  been  able  to  find.  This 
■was  an  application,  under  the  railway  and  traffic  act,  for  an  injunction 
to  restrain  the  railroad  com[)any  from  giving  lower  rates  to  the  Ruabon 
Coal  Company  than  were  given  to  the  complainant  in  that  case,  in  the 
shipment  of  coal,  in  which  it  appeared  that  there  was  a  contract  be- 
tween the  railroad  company  and  the  Ruabon  Coal  Company,  whereby 
the  coal  company  undertook  to  ship,  for  a  period  of  10  years,  as  much 
coal  for  a  distance  of  at  least  100  miles  over  defendant's  road  as  would 
produce  an  annual  gross  revenue  of  £40,000  to  the  railroad  company, 
in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  In  passing 
on  these  facts  the  court  said  that  in  considering  the  question  of  undue 
preference  the  fair  interest  of  the  railroad  company  ought  to  be  taken 
into  the  account ;  tliat  the  preference  or  prejudice,  referred  to  by  the 
statute,  must  be  undue  or  unreasonable  to  be  within  the  prohibition  ; 
and  that,  although  it  was  manifest  that  the  coal  company  had  many 
and  important  advantages  in  carrying  their  coal  on  the  railroad  as 
against  the  complainant  and  other  coal  ovvners,  still  the  question  re- 
mained, were  tliey  undue  or  unreasonable  advantages?  And  this,  tlie 
court  said,  mainly  depended  on  the  adequacy  of  the  consideration  given 
by  the  coal  company  to  the  railroad  company  for  the  advantages  afforded 
by  the  latter  to  the  coal  company.  And  because  it  appeared  that  the 
cost  of  carrying  coal  in  fully  loaded  trains,  regularly  furnislied  at  the 
rate  of  seven  trains  per  week,  was  less  per  ton  to  the  railway  company 
than  coal  delivered  in  the  usual  way,  and  at  irregular  intervals,  and  in 
unequal  quantities,  in  connection  with  the  coal  company's  undertaking 
to  shi|)  annually  coal  enough  over  defendant's  road,  for  at  least  a 
distance  of  100  miles,  to  produce  a  gross  revenue  to  the  railroad  of 


200  HAYS  V.    THE  PENNSYLVANIA  COMPANY. 

£40,000,  the  court  held  that  the  discrimination  complained  of  in  the 
case  was  neither  undue  nor  unreasonable,  and  therefore  denied  the 
application. 

This  case  seems  to  have  been  well  considered,  and  we  have  no  dis- 
position to  question  its  authority.  Future  experience  ma}'  possibly 
call  for  some  modification  of  the  principle  therein  announced.  But 
this  case  calls  for  no  such  modification,  inasmucli  as  the  facts  of  that 
case  are  very  different,  when  closelj-  analyzed,  from  the  facts  proven 
in  this  one.  In  the  former  the  company,  in  whose  favor  the  discrimi- 
nation was  made,  gave,  in  the  judgment  of  the  court,  an  adequate  con- 
sideration for  the  advantages  conceded  to  it  under  and  in  virtue  of  its 
contract.  It  undertook  to  guaranty  £40,000  worth  of  tonnage  per  year 
for  10  years  to  the  railroad  company,  and  to  tender  the  same  for  ship- 
ment in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  It 
was  in  consideration  of  these  obligations  —  which,  in  the  judgment  of 
the  court,  enabled  the  railroad  company  to  perform  the  service  at  less 
expense  —  the  court  held  that  the  advantages  secured  by  the  contract 
to  the  coal  corapanj-  were  neither  undue  nor  unreasonable.  But  there 
are  no  such  facts  to  be  found  in  this  case.  There  was  in  this  case  no 
undertaking  by  an}-  one  to  furnish  an}'  specific  quantity  of  freight  at 
stated  periods  ;  nor  was  any  one  bound  to  tender  coal  for  shipment  in 
fully  loaded  trains.  In  these  particulars  the  plaintiffs  occupied  com- 
mon ground  with  the  parties  who  obtained  lower  rates.  Each  tendered 
coal  for  transportation  in  the  same  condition  and  at  such  times  as  suited 
his  or  their  convenience.  The  discrimination  complained  of  rested  ex- 
clusively on  the  amount  of  freight  supplied  by  the  respective  shippers 
during  the  year.  Ought  a  discrimination  resting  exclusively  on  such  a 
Ijasis  to  be  sustained?  If  so,  then  the  business  of  the  country  is,  in 
some  degree,  subject  to  the  will  of  railroad  officials  ;  for,  if  one  man 
engaged  in  mining  coal,  and  dependent  on  the  same  railroad  for  trans- 
portation to  the  same  market,  can  obtain  transportation  thereof  at  from 
25  to  50  cents  per  ton  less  than  another  competing  with  him  in  business, 
solely  on  the  ground  that  he  is  able  to  furnish  and  does  furnish  tlie  larger 
quantity  for  shipment,  the  small  operator  will  sooner  or  later  be  forced 
to  abandon  the  unequal  contest  and  surrender  to  his  more  opulent  rival. 
If  the  principle  is  sound  in  its  application  to  rival  parties  engaged  in 
mining  coal,  it  is  equally  applicable  to  merchants,  manufacturers,  mil- 
lers, dealers  in  lumber  and  grain,  and  to  everybody  else  interested  in 
any  business  requiring  any  considerable  amount  of  transportation  by 
rail ;  and  it  follows  that  the  success  of  all  such  enterprises  would  de- 
pend as  much  on  the  favor  of  railroad  officials  as  upon  the  energies 
and  capacities  of  the  parties  prosecuting  the  same. 

It  is  not  difficult,  with  such  a  ruling,  to  forecast  the  consequences. 
The  men  who  control  railroads  would  be  quick  to  appreciate  the  power 
with  which  such  a  holding  would  invest  them,  and,  it  may  be,  not  slow 
to  make  the  most  of  their  opportunities,  and  perhaps  tempted  to  favor 
their  friends  to  the  detriment  of  their  personal  or  i)olitical  opponents  ; 


MENACHO   V.   WARD.  201 

or  demand  a  division  of  the  profits  realized  from  such  collateral  pur- 
suits as  could  be  favored  or  depressed  b}'  discriminations  for  or  against 
them  ;  or  else,  seeing  the  augmented  power  of  ca[)ital,  organize  into 
overshadowing  combinations  and  extinguish  all  petty  competition,  mo- 
nopolize business,  and  dictate  the  price  of  coal  and  ever}'  other  com- 
modity' to  consumers.  We  sa}'  these  results  might  follow  the  exercise 
of  such  a  right  as  is  claimed  for  railroads  in  this  case.  lUit  we  think 
no  such  power  exists  in  them  ;  they  have  been  authorized  for  the  com- 
mon benefit  of  ever}'  one,  and  cannot  be  lawfully  manipulated  for  the 
advantage  of  an}'  class  at  the  expense  of  any  other.  Capital  needs  no 
such  extraneous  aid.  It  possesses  inherent  advantages,  which  cannot 
be  taken  from  it.  But  it  has  no  just  claim,  by  reason  of  its  accu- 
mulated strength,  to  demand  the  use  of  the  i)ul)lic  iiighways  of  the 
country,  constructed  for  the  common  benefit  of  all,  on  more  favorable 
terms  than  are  accorded  to  the  humblest  of  the  land  ;  and  a  discrimi- 
nation in  favor  of  parties  furnishing  the  largest  quantity  of  freight,  and 
solely  on  that  ground,  is  a  discrimination  in  favor  of  capital,  and  is 
contrary  to  a  sound  public  policy,  violative  of  that  equality  of  right 
guaranteed  to  every  citizen,  and  a  wrong  to  the  disfavored  party,  for 
which  the  courts  are  competent  to  give  redress. 

The  motion,  therefore,  for  a  new  trial  will  be  denied,  and  a  judgment 
entered  on  the  verdict  for  the  damages  assessed  and  the  costs  of  the 
suit. 

Welkek,  D.  J.,  concurred. 


MENACHO   V.   WARD. 
Circuit  Court  of  the  United  States,  S.  New  York,  1886. 

[27  Fed.  529.] 

Wallace,  J.  The  complainants  have  filed  a  bill  in  each  of  these 
causes  to  restrain  the  defendants  from  making  discriminations  for  trans- 
portation against  the  complainants,  which  consist  in  charging  them  a 
higher  rate  of  freight  than  is  charged  by  defendants  to  other  shippers 
of  merchandise  generally.  A  motion  is  now  made  for  a  preliminarv 
injunction.  The  facts  in  each  case  are  essentially  the  same,  and  both 
cases  may  be  considered  together. 

The  complainants  are  merchants  domiciled  in  the  city  of  New  York, 
and  engaged  in  commerce  between  that  port  and  the  island  of  Cuba. 
The  defendants  are  proprietors  or  managers  of  steamship  lines  plying 
between  New  York  and  Cuba.  Formerly  the  business  of  transportation 
between  the  two  places  was  carried  on  by  sailing  vessels.  In  1877  the 
line  of  steamships  known  as  "  AVard's  Line"  was  established,  and  in 
1881  was  incorporated  by  the  name  of  the  New  York  &  Cuba  Mail 
Steamship  Line  under  the  general  laws  of  the  State  of  New  York.     At 


202  MENACHO    V.    WARD. 

the  time  of  the  incorporation  of  this  company  the  line  of  steamships 
owned  by  the  defendants  Alexandre  &  Sons  had  also  been  established. 
These  two  lines  were  competitors  between  New  York  and  Cuba,  but  for 
several  years  both  lines  have  been  operated  under  a  traffic  agreement 
between  themselves,  hy  which  uniform  rates  are  charged  b}-  each  to  the 
public  for  transportation.  The  two  lines  are  the  only  lines  engaged  in 
the  business  of  regular  transportation  between  New  York  and  Cuba ; 
and  unless  merchants  choose  to  avail  themselves  of  the  facilities  offered 
by  them,  they  are  obliged  to  ship  their  merchandise  by  vessels  or 
steamers  which  may  casually  ph'  between  the  two  places. 

It  is  alleged  b}-  the  complainant  that  the  defendants  liave  announced 
generally  to  New  York  merchants  engaged  in  Cuban  tiade  that  they 
must  not  patronize  steamships  which  offer  for  a  single  voyage,  and  on 
various  occasions  when  other  steamships  have  attempted  to  procure 
cargoes  from  New  York  to  Havana  have  notified  shippers  that  those 
employing  such  steamships  would  thereafter  be  subjected  to  onerous 
discriminations  by  the  defendants.  The  defendants  allege  in  their 
answer  to  the  bill,  in  effect,  that  it  has  been  found  necessary,  for  the 
purpose  of  securing  sufficient  patronage,  to  make  differences  in  rates  of 
freight  between  shippers  in  favor  of  those  who  will  agree  to  patronize 
the  defendants  exclusively.  Within  a  few  months  before  the  commence- 
ment of  this  suit  two  foreign  steamers  were  sent  to  New  York  to  take 
cargoes  to  Havana,  and  the  complainants  were  requested  to  act  as 
agents.  Thereupon  the  complainants  were  notified  by  the  defendants 
that  the}'  would  be  "placed  upon  the  black-list"  if  they  shipped  goods 
hy  these  steamers,  and  that  their  rates  of  freight  would  thereafter  be 
advanced  on  all  goods  which  they  might  have  occasion  to  send  b}-  the 
defendants.  Since  that  time  the  defendants  have  habituall}'  chai-ged 
the  complainants  greater  rates  of  freight  than  those  merchants  who 
sliipped  exclusively  by  the  defendants.  The  freight  charges,  by  the 
course  of  business,  are  paid  hy  consignees  at  the  Cuban  ports.  The 
complainants  have  attempted  to  pay  the  freight  in  advance,  but  liave 
found  this  course  impracticable  because  their  consignees  are  precluded 
from  deducting  damages  or  deficiencies  upon  the  arrival  of  the  goods 
from  the  charges  for  freight,  and  as  a  result  some  of  the  complainants' 
correspondents  in  Cuba  refuse  to  continue  business  relations  with  them, 
being  unwilling  to  submit  to  the  annoyance  of  readjusting  overcharges 
with  complainants.  Upon  this  state  of  facts  the  complainants  have 
founded  the  allegation  of  their  bill  that  the  defendants  "  have  arbi- 
trarily refused  them  equal  terms,  facilities,  and  accommodations  to 
those  granted  and  allowed  by  the  defendants  to  other  shippers,  and 
have  arbitrarily  exacted  from  them  a  much  greater  rate  of  freight  than 
the  defendants  have  at  the  same  time  charged  to  shippers  of  merchan- 
dise generally'  as  a  condition  of  receiving  and  transporting  merchandise." 
They  apply  for  an  injunction  upon  the  theory  that  their  grievances  can- 
not be  redressed  by  an  action  at  law. 

It  is  contended  for  the  complainants  that  a  common  carrier  owes  an 


MENACIIO   V.    WAKD.  203 

equal  duty  to  ever}'  member  of  the  community,  and  is  not  permitted  to 
make  unequal  preferences  in  favor  of  one  person,  or  class  of  persons,  as 
against  anotlier  person  or  class.  The  defendants  insist  that  it  is  permit- 
ted to  common  carriers  to  malie  reasonable  discriminations  in  tlie  rates 
demanded  from  the  public ;  that  tliey  are  not  required  to  carry  for  all 
at  the  same  rates  ;  that  discriminations  are  reasonable  whicli  are  based 
upon  the  quantit}'  of  goods  sent  by  different  shippers  ;  and  that  the 
discrimination  in  the  present  case  is  essentially  such  a  discrimination, 
and  has  no  element  of  personal  preference,  and  is  necessary  for  the 
protection  of  the  defendants. 

Unquestionably  a  common  cari'ier  is  ahvays  entitled  to  a  reasonable 
compensation  for  his  services.  Hence  it  follows  that  he  is  not  required 
to  treat  all  those  who  patronize  him  witli  absolute  equality.  It  is  his 
privilege  to  charge  less  than  fair  compensation  to  one  person,  or  to  a 
class  of  persons,  and  others  cannot  justly  complain  so  long  as  he  carries 
on  reasonable  terms  for  them.  Respecting  preferences  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in  each 
particular  transaction,  and  except  as  thus  restricted  he  is  free  to  dis- 
criminate at  pleasure.  This  is  the  equal  justice  to  all  which  tiie  law 
exacts  from  the  common  carrier  in  his  relations  with  the  pul)lic.  Bax- 
endale  v.  Eastern  Counties  R.  Co.,  4  C.  B.  (N.  8.)  78;  Branley  v. 
Southeastern  R.  Co.,  12  C.  B.  (N.  S.)  74;  Fitchburg  R.  Co.  v.  Gage, 
12  Gray,  393  ;  Sargent  v.  Boston  &  L.  R.  Corp.,  115  Mass.  416,  422.^ 

In  the  present  case  the  question  whether  the  defendants  refuse  to 
carry  for  the  complainants  at  a  reasonable  compensation  resolves  itself 
into  another  form.  Can  the  defendants  lawfully  require  the  complain- 
ants to  pa}'  more  for  carrying  the  same  kind  of  merchandise,  under  like 
conditions,  to  the  same  places,  than  they  charge  to  others,  because  the 
complainants  refuse  to  patronize  the  defendants  exclusively,  while  other 
shippers  do  not?  The  fact  that  the  carrier  charges  some  less  than 
others  for  the  same  service  is  merely  evidence  for  the  latter,  tending  to 
show  that  he  charges  them  too  much  ;  but  when  it  appears  that  the 
charges  are  greater  than  those  ordinarily  and  uniformly  made  to  others 
for  similar  services,  the  fact  is  not  only  competent  evidence  against  tlie 
carrier,  but  cogent  evidence,  and  shifts  upon  him  the  burden  of  justify- 
ing the  exceptional  charge.  The  estimate  placed  by  a  party  upon  the 
value  of  his  own  services  of  property  is  always  sufficient,  against  him, 
to  establish  the  real  value  ;  but  it  has  augmented  probative  force,  and 
is  almost  conclusive  against  him,  when  he  has  adopted  it  in  a  long 
continued  and  extensive  course  of  business  dealings,  and  held  it  out  as 
a  fixed  and  notorious  standard  for  the  information  of  the  public. 

The  defendants  assume  to  justify  upon  the  theory  that  a  carrier  may 
regulate  his  charges  upon  the  basis  of  the  quantity  of  goods  delivered 
to  him  for  transportation  by  different  shippers,  and  that  their  discrimi- 
nation against  the  plaintiff  is  in  substance  one  made  with  reference  to 

1  The  court  here  cited  passap;es  from  the  opinions  in  Messenger  v.  Pennsylvania  R. 
R.,  37  N.  J.  L.  531,  and  McDuffee  v.  Porthiud  &  R.  R.  R.,  52  N.  H.  430.  —Ed. 


204  MENACHO    V.    WARD, 

the  quanlit}-  of  merchandise  furnished  by  thera  for  carriage.  Courts  of 
law  liave  always  recognized  the  rights  of  carriers  to  regulate  their 
charges  with  reference  to  the  quantity  of  merchandise  carried  for  the 
shipper,  eitlier  at  a  given  sliipnient,  or  during  a  given  period  of  time, 
although  public  sentiment  in  many  communities  has  objected  to  such 
discriminations,  and  cr3stallized  into  legislative  condemnation  of  the 
practice.  By  the  English  statutes  (17  &  18  Vict.  c.  31)  railway  and 
canal  carriers  are  prohibited  from  "  giving  an}'  undue  or  unreasonable 
preference  or  advantage  to  or  in  favor  of  an}-  particular  description  of 
traffic,  in  an}-  respect  whatever,"  in  the  receiving,  forwarding,  and  de- 
livery of  traffic ;  but  under  these  provisions  of  positive  law  the  courts 
have  held  that  it  is  not  an  undue  preference  to  give  lower  rates  for 
larger  quantities  of  freight.  Ransome  v.  Eastern  C.  R.  Co.,  1  Nev.  & 
McN.  63,  155;  Nicholson!'.  Great  Western  Ry.  Co.,  Id.  121;  Strick 
V.  Swansea  Canal  Co.,  16  C.  B.  (N.  S.)  245  ;  Greenop  v.  S.  E.  R.  Co., 
2  Nev.  &  McN.  319. 

These  decisions  proceed  upon  the  ground  that  the  carrier  is  entitled 
to  take  into  consideration  the  question  of  his  own  profits  and  interests 
in  determining  what  charges  are  reasonable.  He  may  be  able  to  carry 
a  large  quantity  of  goods,  under  some  circumstances,  at  no  greater  ex- 
pense than  would  be  required  to  carry  a  smaller  quantit}'.  His  fair 
compensation  for  carrying  the  smaller  quantit}'  might  not  be  correcll}- 
measured  by  the  rate  per  pound,  per  bushel,  or  per  mile  charged  for 
the  larger.  If  he  is  assured  of  regular  shipments  at  given  times,  he 
ma}'  be  able  to  make  more  economical  arrangements  for  transportation. 
By  extending  special  inducements  to  the  public  for  patrpnage  he  may 
be  able  to  increase  his  business,  without  a  correspomling  increase  of 
capital  or  expense  in  transacting  it,  and  thus  derive  a  lai-ger  profit. 
He  is  therefore  justified  in  making  discriminations  by  a  scale  of  rates 
having  reference  to  a  standard  of  fair  remuneration  of  all  who  patronize 
him.  But  it  is  impossible  to  maintain  that  any  analogy  exists  between 
a  discrimination  based  upon  the  quantity  of  business  furnished  by  dif- 
ferent classes  of  shippers,  and  one  which  altogether  ignores  tliis  consid- 
eration, and  has  no  relation  to  the  profits  or  compensation  which  the 
carrier  ought  to  derive  for  a  given  quantum  of  service. 

The  proposition  is  speciously  put  that  the  carrier  may  reasonably 
discriminate  between  two  classes  of  shippers,  the  regular  and  the  casual ; 
and  that  such  is  the  only  discrimination  here.  Undoubtedly  the  carrier 
may  adopt  a  commutative  system,  whereby  those  who  furnish  him  a 
regular  traffic  may  obtain  reduced  rates,  just  as  he  may  properly  reg- 
ulate his  charges  upon  the  basis  of  the  quantity  of  traffic  which  he 
receives  from  different  classes  of  shippers.  But  this  is  not  the  proposi- 
tion to  be  discussed.  The  defendants  assume  to  discriminate  against 
the  complainants,  not  because  they  do  not  furnish  them  a  regular  busi- 
ness, or  a  given  number  of  shipments,  or  a  certain  quantity  of  merchan- 
dise to  carry,  but  because  they  refuse  to  patronize  the  defendants 
exclusively.    The  question  is  whether  the  defendants  refuse  to  carry  for 


MENACHO   V.    WAKD.  205 

the  complainants  on  reasonable  terms.  The  defendants,  to  maintain  the 
affirmative,  assert  that  their  charges  are  fair  because  the}'  do  not  have 
the  whole  of  the  complainants'  carrying  business.  But  it  can  never  be 
material  to  consider  wliether  the  carrier  is  permitted  to  enjoy  a  monopoly 
of  the  transportation  for  a  particular  individual,  or  class  of  indivivluals, 
in  ascertaining  what  is  reasonable  compensation  for  tlie  services  actu- 
ally rendered  to  him  or  them.  Such  a  consideration  might  be  influen- 
tial in  inducing  parties  to  contract  in  advance  ;  but  it  has  no  legitimate 
bearing  upon  the  value  of  services  rendered  without  a  special  contract, 
or  which  are  rendered  because  the  law  requires  them  to  be  rendered  for 
a  fair  remuneration. 

A  conmion  carrier  "  is  in  the  exercise  of  a  sort  of  public  office,  and 
has  public  duties  to  perform,  from  which  he  should  not  be  permitted  to 
exonerate  himself"  Nelson,  J.,  in  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  34-i.  His  obligations  and  liabilities  are  not 
dependent  upon  contract,  tliough  they  ma}'  be  modified  and  limited  by 
contract.  They  are  imposed  by  the  law,  from  the  public  nature  of  his 
employment.  Hannibal  R.  R.  ik  Swift,  12  Wall.  262.  As  their  busi- 
ness is  "  aflfected  with  a  public  interest,"  it  is  subject  to  legislative 
regulation.  "  In  mattei's  wliicli  do  affect  the  public  interest,  and  as  to 
which  legislative  control  may  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  courts  must  determine  what  is  reason- 
able." Waite,  C.  J.,  in  Munn  v.  lUinois,  94  U.  S.  113,  134.  It  is 
upon  this  foundation,  and  not  alone  because  the  business  of  common 
carriers  is  so  largely  controlled  by  corporations  exercising  under  frnn- 
chises  the  privileges  which  are  held  in  trust  for  the  public  benefit,  that 
the  courts  have  so  strenuously  resisted  their  attempts,  by  special  con- 
tracts or  unfair  preferences,  to  discriminate  between  those  whom  it  is 
their  duty  to  serve  impartially.  And  the  courts  are  especially  solicitous 
to  discountenance  all  contracts  or  arrangements  by  these  public  servants 
which  savor  of  a  purpose  to  stifle  competition  or  repress  rivalry  in  the 
departments  of  business  in  which  they  ply  their  vocation.  Illustrations 
are  found  in  the  cases  of  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn. 
638  ;  Hooker  v.  Vandewater,  4  Denio,  349  ;  W.  U.  Tel.  Co.  v.  Chicago 
&  P.  R.  Co.,  86  111.  246;  Coe  v.  Louisville  &  N.  R.  Co.,  3  Fed. 
Rep.  775. 

The  vice  of  the  discrimination  here  is  that  it  is  calculated  to  coerce 
all  those  who  have  occasion  to  employ  common  carriers  between  New 
York  and  Cuba  from  employing  such  agencies  as  may  offer.  Its  ten- 
dency is  to  deprive  the  public  of  their  legitimate  opportunities  to  obtain 
carriage  on  the  best  terms  they  can.  If  it  is  tolerated  it  will  result 
practically  in  giving  the  defendants  a  monopoly  of  the  carrying  trade 
between  these  places.  Manifestly  it  is  enforced  by  the  defendants  in 
order  to  discourage  all  others  from  attempting  to  serve  the  public  as 
carriers  between  these  places.  Such  discrimination  is  not  only  unrea- 
sonable, but  is  odious.  Ordinarily  the  remedy  against  a  carrier  is  at 
law  for  damages  for  a  refusal  to  carrv,  or  to  recover  the  excess  of 


206  EOOT    V.    LONG    ISLAND   EAILROAD. 

charges  paid  to  obtain  tlie  deliveiy  of  goods.    The  special  circumstances 
in  this  case  indicate  that  such  a  remedy  would  not  afford  complete  and 
adequate  redress,  "  as  practical  and  efficient  to  the  ends  of  justice  "  as 
the  remed3'  in  equit}'.     Watson  v.  Sutherland,  5  Wall.  74. 
The  motion  for  an  injunction  is  granted. 


ROOT   V.    LONG   ISLAND   RAILROAD. 

Court  of  Appeals  of  New  York,  Second  Division,  1889. 

[114  N.  Y.  300;  21  N.  E.  403.] 

Haight,  J.  In  June,  1876,  the  defendant  and  one  Quintard  entered 
into  a  written  contract,  which,  among  other  things,  provided  that 
Quintard  should  build  at  Long  Island  City  upon  the  lands  of  the  de- 
fendant a  dock  250  feet  long  and  40  feet  wide,  and  erect  thereon  a 
pocket  for  holding  and  storing  coal,  according  to  certain  plans  and 
specifications  annexed.  The  defendant  was  to  have  the  use  of  the 
south  side  of  the  dock,  and  also  of  30  feet  of  the  shore  end,  and  the 
right  to  use  the  other  portions  thereof  when  not  required  by  Quintard. 
In  consideration  therefor  the  defendant  agreed  with  Quintard  to  trans- 
port in  its  cars  all  the  coal  in  car-loads  offered  for  transportation  by 
him  at  a  rebate  of  15  cents  per  ton  of  2,240  pounds  from  the  regular 
tariff  rates  for  coal  transported  b}"  the  defendant  from  time  to  time, 
except  in  the  case  of  the  coal  carried  for  the  Brooklyn  Water-Works 
Company,  with  which  company  the  defendant  reserved  the  right  to 
make  a  special  rate,  which  should  not  be  considered  "the  regular 
tariff  rate."  The  defendant  also  agreed  with  Quintard  to  provide 
him  with  certain  yard  room  and  office  room  free  of  rent,  and  the  con- 
tract was  to  continue  for  the  term  of  10  3'ears,  and  at  the  termination 
of  the  contract  the  dock  and  structures  were  to  be  appraised,  and  the 
value  thereof,  less  the  sum  of  $2,000  advanced  by  the  defendant,  to 
be  paid  to  Quintard.  Pursuant  to  this  agreement  the  dock  and  coal 
pocket  were  constructed  at  an  expense  of  817,000,  and  coal  in  large 
quantities  was  shipped  over  the  defendant's  road  by  Quintard  or  his 
assignee  under  the  contract,  and  it  is  for  the  rebate  of  15  cents  per 
ton  upon  the  coal  so  shipped  that  this  action  was  brought.  The 
defence  is  that  the  contract  was  against  public  policy,  and  was  there- 
fore illegal  and  void. 

The  defendant  is  a  railroad  corporation  organized  under  the  laws 
of  the  State,  and  was  therefore  a  common  carrier  of  passengers  and 
freight,  and  was  subject  to  the  duties  and  liabilities  of  such.  These 
duties  and  liabilities  have  often  been  the  subject  of  judicial  consid- 
eration in  the  different  States  of  the  Union.  In  Illinois  it  has  been 
held  that  a  railroad  corporation,  although  permitted  to  establish  its 
rates  for  transportation,  must  do  so  without  injurious  discrimination 


ROOT   V.   LONG   ISLAND    RAILROAD.  207 

to  individuals ;  that  its  charges  must  be  reasonable.  Railroad  Co. 
V.  People,  67  111.  11 ;  Vincent  v.  Railroad  Co.,  49  111.  33.  In  Ohio  it 
was  held  that  where  a  railroad  company  gave  a  lower  rate  to  a  favored 
shipper  with  the  intent  to  give  such  shipper  an  exclusive  monopoly, 
thus  affecting  the  business  and  destroying  the  trade  of  other  shippers, 
the  latter  have  the  right  to  require  an  equal  rate  for  all  under  like 
circumstances.  Scofield  v.  Railway  Co.,  43  Ohio  St.  571.  In  New 
Jersey  it  has  been  held  that  an  agreement  by  a  railroad  company  to 
carrj'  goods  for  certain  persons  at  a  cheaper  rate  than  it  would  carry 
under  the  same  condition  for  others  is  void,  as  creating  an  illegal 
preference;  that  common  carriers  are  public  agents,  transacting  their 
business  under  an  obligation  to  observe  equality  towards  every  mem- 
ber of  the  community,  to  serve  all  persons  alike,  without  giving  unjust 
or  unreasonable  advantages  by  way  of  facilities  for  the  carriage,  or 
rates  for  the  transportation,  of  goods.  Messenger  v.  Railroad  Co., 
36  N.  J.  Law,  407;  State  v.  Railroad  Co.,  48  N.  J.  Law,  55.  In 
New  Hampshire  it  has  been  held  that  a  railroad  is  bound  to  carry  at 
reasonable  rates  commodities  for  all  persons  who  offer  them,  as  early 
as  means  will  allow;  that  it  cannot  directly  exercise  unreasonable 
discrimination  as  to  who  and  what  it  will  carry;  that  it  cannot  im- 
pose unreasonable  or  unequal  terms,  facilities,  or  accommodations. 
McDuffee  v.  Railroad,  52  N.  H.  430.  To  similar  effect  are  cases  in 
other  States.  Express  Co.  v.  Railroad  Co.,  57  Me.  188;  Shipi)er  v. 
Railroad  Co.,  47  Pa.  St.  338;  Railroad  Co.  v.  Gage,  12  Gray,  393; 
Menacho  v.  Ward,  27  Fed.  Rep.  529.  In  New  York  the  authorities 
are  exceedingly  meagre.  The  question  was  considered  to  some  extent 
in  the  case  of  Killmer  v.  Railroad  Co.,  100  N.  Y.  395,  in  which  it 
was  held  that  the  reservation  in  the  general  act  of  the  power  of  the 
legislature  to  regulate  and  reduce  charges,  wiiere  the  earnings  exceeded 
10  per  cent  of  the  capital  actually  expended,  did  not  relieve  the  com- 
pany from  its  common  law  duty  as  a  common  carrier;  that  the  ques- 
tion as- to  what  was  a  reasonable  sum  for  the  transportation  of  goods 
on  the  lines  of  a  railroad  in  a  given  case  is  a  complex  question,  into 
which  enter  many  elements  for  consideration. 

In  determining  the  duty  of  a  common  carrier,  we  must  be  reason- 
able and  just.  The  carrier  should  be  permitted  to  charge  reasonable 
compensation  for  the-  goods  transported.  He  should  not,  however, 
be  permitted  to  unreasonably  or  unjustly  discriminate  against  other 
individuals,  to  the  injury  of.  their  business,  where  the  conditions  are 
equal.  So  far  as  is  reasonable,  all  should  be  treated  alike;  but  we 
are  aware  that  absolute  equality  cannot  in  all  cases  be  required,  for 
circumstances  and  conditions  may  make  it  impossible  or  unjust  to  the 
carrier.  The  carrier  may  be  able  to  carry  freight  over  a  long  distance 
at  a  less  sum  than  he  could  for  a  short  distance.  He  may  be  able  to 
carry  a  large  quantity  at  a  less  rate  than  he  could  a  smaller  quantity. 
The  facilities  for  loading  and  unloading  may  be  different  in  different 
places,  and  the  expenses  may  be  greater  in  some  places  than  in  others. 


208  EOOT   V.   LONG   ISLAND   RAILROAD. 

Numerous  circumstances  may  intervene  which  bear  upon  the  cost 
and  expenses  of  transportation,  and  it  is  but  just  to  the  carrier  that 
he  be  permitted  to  take  these  circumstances  into  consideration  in 
determining  the  rate  or  amount  of  his  compensation.  His  charges 
must  therefore  be  reasonable,  and  he  must  not  unjustl}'  discriminate 
against  others,  and  in  determining  what  would  amount  to  unjust  dis- 
crimination all  the  facts  and  circumstances  must  be  tai^en  into  con- 
sideration. This  raises  a  question  of  fact,  which  must  ordinarily  be 
determined  by  the  trial  court.  The  question  as  to  whether  there 
was  unjust  discrimination  embraced  in  the  provisions  of  the  contract 
does  not  appear  to  have  been  determined  by  the  referee,  for  no  find- 
ing of  fact  appears  upon  that  subject.  Neither  does  it  appear  that 
he  was  requested  to  find  upon  that  question,  and  consequently  there  is 
no  exception  to  the  refusal  to  find  thereon.  Unless,  therefore,  we  can 
determine  the  question  as  one  of  law,  there  is  nothing  upon  this  sub- 
ject presented  for  review  in  this  court.  Is  the  provision  of  the  con- 
tract, therefore,  providing  for  a  rebate  of  15  cents  per  ton  from  the 
regular  tariff  rates,  an  unjust  discrimination  as  a  matter  of  law? 
Had  this  provision  stood  alone,  unqualified  by  other  provisions,  with- 
out the  circumstances  under  which  it  was  executed  explaining  the 
necessity  therefor,  we  should  be  inclined  to  the  opinion  that  it  did 
provide  for  an  unjust  discrimination;  but,  upon  referring  to  the  con- 
tract, we  see  that  the  rebate  was  agreed  to  be  paid  in  consideration 
for  the  dock  and  coal  pocket  w^hich  was  to  be  constructed  upon  the 
defendant's  premises  at  an  expense  of  $17,000,  in  part  for  the  use  and 
convenience  of  the  defendant.  Qaintard  was  to  load  all  the  cars  with 
the  coal  that  was  to  be  transported.  It  was  understood  that  a  large 
quantity  of  coal  was  to  be  shipped  over  defendant's  line,  thus  increas- 
ing the  business  and  income  of  the  company.  The  facilities  which 
Quintard  was  to  provide  for  the  loading  of  the  coal,  his  services  in 
loading  the  cars,  the  large  quantities  which  he  was  to  ship,  in  con- 
nection with  the  large  sums  of  money  that  he  had  expended  in  the 
erection  of  the  dock,  in  part  for  the  use  and  accommodation  of  the 
defendant,  are  facts  which  tend  to  exp'ain  the  provision  of  the  con- 
tract complained  of,  and  render  it  a  question  of  fact  for  the  determi- 
nation of  the  trial  court  as  to  whether  or  not  the  rebate,  under  the 
circumstances  of  this  case,  amounted  to  an  unjust  discrimination, 
to  the  injury  and  prejudice  of  others.  Therefore,  in  this  case,  the 
question  is  one  of  fact,  and  not  of  law;  and,  inasmuch  as  the  discrim- 
ination has  not  been  found  to  be  unjust  or  unreasonable,  the  judgment, 
cannot  be  disturbed.^ 

The  judgment  should  be  aflSrmed  with  costs. 

All  concur. 

Judgment  affirmed, 

1  A  paragraph  discussing  a  question  of  fact  is  omitted.  — Ed. 


LOUGH    V.    OUTERBRIDGE.  209 


LOUGH   V.    OUTERBRIDGE. 
Court  of  Appeals  of  New  York,  1894. 

[143  N.  Y.  271  ;  38  N.  E.  292.] 

O'Brien,  J.  The  question  presented  by  this  appeal  is  one  of  very 
great  importance.  It  touches  commerce,  and,  more  especially,  the 
duties  and  obligations  of  common  carriers  to  the  public  at  many 
points.  There  was  no  dispute  at  the  trial,  and  there  is  none  now, 
with  respect  to  the  facts  upon  which  it  arises.  In  order  to  present  the 
question  clearly,  a  brief  statement  of  these  facts  becomes  necessary. 
The  plaintiffs  are  the  surviving  members  of  a  firm  that,  for  many 
years  prior  to  the  transaction  upon  which  the  action  was  based,  had 
been  engaged  in  business  as  commission  merchants  in  the  city  of 
New  York,  transacting  their  business  mainly  with  the  Windward  and 
Leeward  Islands.  The  defendant,  the  Quebec  Steamship  Compaiiy, 
is  a  Canadian  corporation,  organized  and  existing  under  the  laws  of 
Canada;  and  the  other  defendants  are  the  agents  of  the  corporation 
in  New  York,  doing  business  as  partners.  The  business  of  the  cor- 
poration is  that  of  a  common  carrier,  transporting  passengers  and 
freight  for  Jiire  upon  the  sea  and  adjacent  waters.  For  nearly  20 
years  prior  to  the  transaction  in  question,  a  part  of  its  business  was 
the  transportation  of  cargoes  between  New  York  and  the  Barbadoes 
and  the  Windward  Islands,  the  other  defendants  acting  as  agents  in 
respect  to  this  business.  During  some  years  prior  to  the  commence- 
ment of  this  action,  the  company  had  in  its  service  a  fleet  of  five  or 
six  of  the  highest  class  iron  steamers,  sailing  at  intervals  of  about  ten 
days  from  New  York  to  the  islands,  each  steamer  requiring  about  six 
weeks  to  make  the  trip.  The  steamers  were  kept  constantly  engaged 
in  this  service  and  sailed  regularly  upon  schedule  days  without  refer- 
ence to  the  amount  of  cargo  then  received.  The  regular  and  standard 
rate  charged  for  freight  up  to  December,  1891,  from  New  York  to 
Barbadoes,  one  of  the  Windward  Islands,  was  50  cents  per  dry  barrel 
of  five  cubic  feet,  which  was  taken  as  the  unit  of  measurement,  and 
the  tariff  of  charges  was  adjusted  accordingly  for  goods  shipped  in 
other  forms  and  packages.  In  December,  1891,  the  regular  rate  was 
reduced  from  50  to  40  cents  per  dry  barrel.  About  this  time  the 
British  steamer  El  Callao,  which  had  for  some  years  before  sailed 
between  New  York  and  Ciudad  Bolivar,  in  South  America,  trans- 
porting passengers  and  freight  between  these  points,  began  to  take 
cargo  at  New  York  for  Barbadoes,  and  sometimes  to  other  points  in 
the  Windward  Islands  which  she  passed  on  her  regular  trips  to  Ciudad 
Bolivar,  sailing  from  New  York  at  intervals  of  five  or  six  weeks. 
Her  trade  with  South  America  was  the  principal  feature  of  her  busi- 
ness, but  such  space  as  was  not  required  for  the  cargo  destined  for 
the  end  of  the  route  was  filled  with  cargo  for  the  islands  which  lay 

14 


210  LOUGH   V.    OUTEKBRIDGE. 

in  her  regular  course.     The  defendants  evidently  regarded  this  vessel 
as  a  somewhat  dangerous  competitor  for  a  part  of  the  business,  the 
benefits  of  which  they  had  up  to  this  time  enjoyed ;  and,  for  the  pur- 
pose of  retaining  it,  they  adopted  the  plan  of  offering  special  reduced 
rates  of  25  cents  per  dry  barrel  to  all  merchants  and  business  men  in 
New  York  who  would  agree  to  ship  by  their  line  exclusively  during 
the  week  that  the  El  Callao  was  engaged  in  obtaining  freight  and 
taking  on  cargo.     The  plaintiffs'  firm  had  business  arrangements  with 
and  were  shipping  by  that  vessel;  and  in  February,  1892,  they  de- 
manded of  the  defendants  that  they  receive  3,000  barrels  of  freight 
from  New  York  to  Barbadoes,  and  transport  the  same  at  the  special 
rate  of  25  cents  per  barrel  upon  one  of  its  steamers.     The  defendants 
then  informed  the  plaintiffs  that  the  rate  of  25  cents  was  allowed  by 
them  only  to  such  shippers  as  stipulated  to  give  all  their  business 
exclusively  to  the  defendants'  line,  in  preference  to  the  El  Callao,  and 
that  to  all  other  shippers  the  standard  rate  of  40  cents  per  dry  barrel 
was  maintained;  but  they  further  informed  the  plaintiffs  that,  if  they 
would  agree  to  give  their  shipments  for  that  week  exclusively  to  the 
defendants'  line,  the  goods  would  be  received  at  the  25  cents  rate. 
The  plaintiffs,  however,  were  shipping  by  the  other  vessel,  and  de- 
clined this  offer.     Again,  in  the  month  of  May,  1892,  the  El  Callao 
was  in  the  port  of  New  York  taking  on  cargo,  as  was  also  the  de- 
fendants' steamer  Trinidad.     The  plaintiffs  then   demanded  of   the 
defendants  that  they  receive  and  carry  from  New  York  to  Barbadoes 
about  1,760  dry  barrels  of  freight  at  the  rate  of  25  cents.     The  de- 
fendants notified  the  plaintiffs  that  a  general  offer  had  that  day  been 
made  by  them  to  the  trade  to  take  cargo  for  Barbadoes  on  the  Trini- 
dad, to  sail  on  June  4th,  at  25  cents  per  dry  barrel,  under  an  agree- 
ment that  shippers  accepting  that  rate  should  bind  themselves  not  to 
ship  to  that  point  by  steamers  of  any  other  line  between  that  date 
and  the  sailing  of  the  Trinidad.     The  defendants  offered  these  terms 
to  the  plaintiffs,  but,  as  they  were  shipping  by  the  rival  vessel,  the 
offer  was  declined.     Except  during  the  week  when  the  El  Callao  was 
engaged  in  taking  on   cargo,   the    defendants    have    maintained    the 
regular  rate  of  40  cents  to  all  shippers  between  these  points;  and, 
when  it  reduced  the  rate  as  above  described,  exactly  the  same  rates, 
terms,   and   conditions  were    offered    to    all    shippers,   including  the 
plaintiffs,  and  carried  freight  for  other  parties  at  the  reduced  rates 
only  upon  their  entering  into  a  stipulation   not  to  ship  by  the  rival 
vessel.     After  the  plaintiffs'  demand  last  mentioned  had  been  refused, 
they  obtained    an  order  from  one  of  the  judges  of  the  court  in  this 
action  requiring  the  defendants  to  carry  the   1,760  barrels,  and  the 
defendants  did  receive  and  transport  them,  in  obedience  to  the  order, 
at  the  rate  of  25  cents;  but  this  order  was  reversed  at  general  term. 
The  plaintiffs  demand  equitable  relief  in  the    action    to    the    effect, 
substantially,  that  the  defendants  be  required  and  compelled  by  the 
judgment  of  the  court  to  receive  and  transport  for  the  plaintiffs  their 


LOUGH   V.   OUTERBEIDGE.  211 

freight  at  the  special  reduced  rates,  when  allowed  to  all  other  ship- 
pers, without  imposing  the  condition  that  the  plaintiffs  stipulate  to 
shi[)  (lui-ing  the  times  specified  by  the  defendants'  line  exclusively. 

Wlietlier  the  regular  rate  of  40  cents,  for  which  it  is  conceded  that 
the  defendants  offered  to  carry  for  the  plaintiffs  at  all  times  without 
conditions,  was  or  was  not  reasonable,  was  a  question  of  fact  to  be 
determined  upon  the  evidence  at  the  trial;  and  the  learned  trial  judge 
has  found  as  matter  of  fact  that  it  was  reasonable,  and  that  the  re- 
duced rate  of  25  cents  granted  to  shippers  on  special  occasions,  and 
upon  the  conditions  and  requirements  mentioned,  was  not  profitable. 
This  finding,  which  stands  unquestioned  upon  the  record,  seems  to 
me  to  be  an  element  of  great  importance  in  the  case,  which  must  be 
recognized  at  every  stage  of  the  investigation.  A  common  carrier  is 
subject  to  an  action  at  law  for  damages  in  case  of  refusal  to  perform 
its  duties  to  the  public  for  a  reasonable  compensation,  or  to  recover 
back  the  money  paid  when  the  charge  is  excessive.  This  right  to 
maintain  an  action  at  law  upon  the  facts  alleged,  it  is  urged  by  the 
learned  counsel  for  the  defendants,  precludes  the  plaintiffs  from  main- 
taining a  suit  for  equitable  relief  such  as  is  demanded  in  the  com- 
plaint. There  is  authority  in  other  jurisdictions  to  sustain  the 
practice  adopted  by  the  plaintiffs  (Watson  v.  Sutherland,  5  Wall.  74 ; 
Meuacho  v.  Ward,  27  Fed.  529;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v. 
Pennsylvania  Co.,  54  Fed.  741;  Coe  &  Milsom  v.  Railroad  Co.,  3 
Fed.  775;  Vincent  v.  Railroad  Co.,  49  111.  33;  Scofield  v.  Railroad 
Co.,  43  Ohio  St.  571),  though  I  am  not  aware  of  any  in  this  State  that 
would  bring  a  case  based  upon  such  facts  within  the  usual  or  ordinary 
jurisdiction  of  equity.  So  far  as  this  case  is  concerned,  it  is  sufficient 
to  observe  that  it  is  now  settled  by  a  very  general  concurrence  of 
authority  that  a  defendant  cannot,  when  sued  in  equity,  avail  himself 
of  the  defence  that  an  adequate  remedy  at  law  exists,  unless  he  pleads 
that  defence  in  his  answer.  Cogswell  v.  Railroad  Co.,  105  N.  Y. 
319;  Town  of  Mentz  v.  Cook,  108  N.  Y.  504;  Ostrander  ?'.  Weber, 
114  N.  Y.  95;  Dudley  v.  Congregation,  138  N.  Y.  460;  Truscott  r. 
King,  6  N.  Y.  147. 

When  the  facts  alleged  are  suflficient  to  entitle  the  plaintiff  to  relief 
in  some  form  of  action,  and  no  objection  has  been  made  by  the  de- 
fendant to  the  form  of  the  action  in  his  answer  or  at  the  trial,  it  is 
too  late  to  raise  the  point  after  judgment  or  upon  appeal.  So  that, 
whatever  objections  might  have  been  urged  originally  against  the 
action  in  its  present  form,  the  defendants  must  now  be  deemed  to  have 
waived  them.  This  court  will  not  now  stop  to  examine  a  miner 
question  that  does  not  touch  the  merits,  but  relates  wholly  to  the  form 
in  which  the  plaintiffs  have  presented  the  facts  and  demanded  relief, 
or  to  the  practice  and  procedure.  The  time  and  place  to  raise  and 
discuss  these  questions  was  at  or  before  the  trial,  and,  as  they  were 
not  then  raised,  the  case  must  be  examined  and  disposed  of  upon  the 
merits.     The  defendants  were   engaged  in  a  business  in  which  the 


212  LOUGH   V.    OUTERBRIDGE. 

public  were  interested,  and  the  duties  and  obligations  growing  out 
of  it  may  be  enforced  through  the  courts  and  the  legislative  power, 
Munn  V.  Illinois,  94  U.  S.  113;  People  v.  Budd,   117  N.  Y.   1.     In 
England  these  duties  are,  to  a  great  extent,  regulated  by  the  railway 
and  canal  traffic  act  (17  &  18  Vict,  c.  31),  and  by  statute  in  some  of 
the  States,  and  in  this  country,  so  far  as  they  enter  into  the  business 
of  interstate  commerce,  by  act  of  Congress.    The  solution  of  the  ques- 
tion now  presented  depends  upon  the  general  principles  of  the  common 
law,  as  there  is  no  statute  in  this  State  that  affects  the  question,  and 
the  legislation  referred  to  is  important  only  for  the  purpose  of  in- 
dicating the  extent  to  which  business  of  this  character  has  been  sub- 
jected to  public  regulation  for  the  general  good.     There  can  be  no 
doubt  that  at  common  law  a  common  carrier  undertook  generally,  and 
not  as  a  casual  occupation,  to  convey  and  deliver  goods  for  a  reason- 
able compensation  as  a  business,  with  or  without  a  special  agreement, 
and   for   all   people    indifferently;  and,   in  the  absence  of  a  special 
agreement,  he  was  bound  to  treat  all  alike  in  the  sense  that  he  was 
not  permitted  to  charge  any  one  an  excessive  price  for  the  services. 
He  has  no  right  in  any  case  while  engaged  in  this  public  employment 
to  exact   from   any  one  anything   beyond  what   under   the  circum- 
stances is  reasonable  and  just.     2  Kent,  Comm.  (13th  ed.)  598;  Story, 
Bailm.  §§  495,  508;  2  Pars.  Cont.  175;  Killmer  v.  Railroad  Co.,  100 
N.  Y.  395;  Root  v.  Railroad  Co.  114  N.  Y.  300.     It  may  also  be  con- 
ceded that  the  carrier  cannot  unreasonably  or  unjustly  discriminate 
in  favor   of   one  or   against  another  .where   the  circumstances   and 
conditions  are  the  same.     The  question  in  this  case  is  whether  the 
defendants,  upon  the  undisputed  facts  contained  in  the  record,  have 
discharged  these  obligations  to  the  plaintiffs.     There  was  no  refusal 
to  carry  for  a  reasonable  compensation.     On  the  contrary,  the  defend- 
ants offered  to  transport  the  goods  for  the  40  cents  rate,  and  we  are 
concluded  by  the  finding  as  to  the  reasonable  nature  of  that  charge. 
The  defendants  even  offered  to  carry  them  at  the  unprofitable  rate  of 
25  cents,  providing  the  plaintiffs  would  comply  with  the  same  condi- 
tions upon  which  the  goods  of  any  other  person  were  carried  at  that 
rate.     What  is  reasonable  and  just  in  a  common  carrier  in  a  given 
case  is  a  complex  question,  into  which  enter  many  elements  for  con- 
sideration.    The  questions  of  time,  place,  distance,  facilities,  quan- 
tity, and  character  of  the  goods,   and  many  other  matters  must  be 
considered.     The  carrier  can  afford  to  carry  10,000  tons  of  coal  and 
other  property  to  a  given  place  for  less  compensation  per  ton  than 
he  could  carry  50;  and,  where  the  business  is  of  great  magnitude,  a 
rebate  from  the  standard  rate  might  be  just  and  reasonable,  while  it 
could  not  fairly  be  granted  to  another  who  desired  to  have  a  trifling 
amount  of  goods  carried  to  the  same  point.     So  long  as  the  regular 
standard  rates  maintained  by  the  carrier  and  offered  to  all  are  reason- 
able, one  shipper  cannot  complain  because  his  neighbor,  by  reason  of 
special  circumstances  and  conditions,  can  make  it  an  object  for  the 


LOUGH   V.   OUTERBPvIDGE.  213 

carrier  to  give  bim  reduced  rates.  In  this  ease  the  finding  implies 
that  the  defendants  at  certain  times  carried  goods  at  a  loss,  upon  the 
condition  that  the  sliippers  gave  them  all  of  their  business.  What- 
ever effect  may  be  given  to  the  legislation  referred  to,  in  its  applica- 
tion to  railroads  and  other  corporations  deriving  their  powers  and 
franchises  from  the  State,  there  can  be  no  doubt  that  the  carrier  could 
at  common  law  make  a  discount  from  its  reasonable  general  rates  in 
favor  of  a  particular  customer  or  class  of  customers  in  isolated 
cases,  for  special  reasons,  and  upon  special  conditions,  without 
violating  any  of  the  duties  or  obligations  to  the  public  inherent  in 
the  employment.  If  the  general  rates  are  reasonable,  a  deviation 
from  the  standard  by  the  carrier  in  favor  of  particular  customers,  for 
special  reasons  not  applicable  to  the  whole  public,  does  not  furnish  to 
parties  not  similarly  situated  any  just  ground  for  complaint.  When 
the  conditions  and  circumstances  are  identical,  the  charges  to  all 
shippers  for  the  same  service  must  be  equal.  These  principles  are 
well  settled,  and  whatever  may  be  found  to  the  contrary  in  the  cases 
cited  by  the  learned  counsel  for  the  plaintiff  originated  in  the  appli- 
cation of  statutory  regulations  in  other  States  and  countries.  Rail- 
road Co.  V.  Gage,  12  Gray,  393;  Sargent  r.  Railroad  Co.,  115  Mass. 
422;  Steamship  Co.  v.  McGregor,  21  Q.  B.  Div.  544,  affirmed  23 
Q.  B.  Div.  598,  and  by  H.  L.  17  App.  Cas.  25;  Evershed  v.  Railway 
Co.,  3  Q.  B.  Div.  135;  Baxendale  v.  Railroad  Co.,  4  C.  B.  (N.  S.) 
78;  Branley  v.  Railroad  Co.,  12  C.  B.  (N.  S.)  74. 

Special  favors  in  the  form  of  reduced  rates  to  particular  customers 
may  form  an  element  in  the  inquiry  whether,  as  matter  of  fact,  the 
standard  rates  are  reasonable  or  otherwise.  If  they  are  extended  to 
such  persons  at  the  expense  of  the  general  public,  the  fact  must  be 
taken  into  account  in  ascertaining  whether  a  given  tariff  of  general 
prices  is  or  is  not  reasonable.  But,  as  in  this  ease  the  reasonable 
nature  of  the  price  for  which  the  defendants  offered  to  carry  the 
plaintiffs'  goods  has  been  settled  by  the  findings  of  the  trial  court, 
it  will  not  be  profitable  to  consider  further  the  propriety  or  effect  of 
such  discrimination.  The  rule  of  the  common  law  was  thus  broadly 
stated  by  the  Supreme  Court  of  Massachusetts  in  the  case  of  Railroad 
Co.  V.  Gage,  supra.  Upon  that  point  the  court  said:  "The  recent 
English  cases,  cited  by  the  counsel  for  the  defendants,  are  chiefly 
commentaries  upon  the  special  legislation  of  Parliament  regulating 
the  transportation  of  freight  on  railroads  constructed  under  the 
authority  of  the  government  there,  and  consequently  throw  very  little 
light  upon  questions  concerning  the  general  rights  and  duties  of  com- 
mon carriers,  and  are  for  that  reason  not  to  be  regarded  as  author- 
itative expositions  of  the  common  law  upon  these  subjects.  The 
principle  derived  from  that  source  is  very  simple.  It  requires  equal 
justice  to  all.  But  the  equality  which  is  to  be  observed  consists  in 
the  restricted  right  to  charge  a  reasonable  compensation,  and  no 
more.     If  the  carrier  confines  himself  to  this,  no  wrong  can  be  done. 


214  LOUGH    V.    OUTERBEIDGE. 

If,  for  special  reasons  iu  isolated  cases,  tbe  carrier  sees  fit  to  stipu- 
late for  the  carriage  of  goods  of  any  class  for  individuals,  for  a 
certain  time,  or  iu  certain  quantities,  for  a  less  compensation  than 
what  is  the  usual,  necessary,  and  reasonable  rate,  he  may  undoubt- 
edly do  so  without  entitling  all  parties  to  the  same  advantage."  In 
Evershed  v.  Eailway  Co.,  siqjra,  Lord  Bramwell  remarked:  "I  am 
not  going  to  lay  down  a  precise  rule,  but,  speaking  generally,  and 
subject  to  qualification,  it  is  open  to  a  railway  company  to  make  a 
bargain  with  a  person,  provided  they  are  willing  to  make  the  same 
bargain  with  any  other,  though  that  other  may  not  be  in  a  situation 
to  make  it.  An  obvious  illustration  may  be  found  in  season  tickets." 
The  authorities  cited  seem  to  nie  to  remove  all  doubt  as  to  the  right 
of  a  carrier,  by  special  agreement,  to  give  reduced  rates  to  customers 
who  stipulate  to  give  them  all  their  business,  and  to  refuse  these  rates 
to  others  who  are  not  able  or  willing  to  so  stipulate,  providing, 
always,  that  the  charge  exacted  from  such  parties  for  the  service  is 
not  excessive  or  unreasonable.  The  principle  of  equality  to  all,  so 
earnestly  contended  for  by  the  learned  counsel  for  the  plaintiffs,  was 
not,  therefore,  violated  by  the  defendants,  since  they  were  willing  and 
offered  to  carry  the  plaintiffs'  goods  at  the  reduced  rate,  upon  the 
same  terms  and  conditions  that  these  rates  were  granted  to  others; 
and,  if  the  plaintiff's  were  unable  to  get  the  benefit  of  such  rate,  it 
was  because,  for  some  reason,  they  were  unable  or  unwilliug  to  comply 
with  the  conditions  upon  which  it  was  given  to  their  neighbors,  and 
not  because  the  carrier  disregarded  his  duties  or  obligations  to  the 
public.  The  case  of  Menacho  r.  Ward,  27  Fed.  529,  does  not  apply, 
because  the  facts  were  radically'  different.  That  action  was  to  restrain 
the  carrier  from  exacting  unreasonable  charges  habitually  for  ser- 
vices, the  charges  having  been  advanced  as  to  the  parties  complaining, 
for  the  reason  that  they  had  at  times  employed  another  line.  It  de- 
cides nothing  contrary  to  the  general  views  here  stated.  On  the  con- 
trary, the  court  expi'essly  recognized  the  general  rule  of  the  common 
law  with  respect  to  the  obligations  and  duties  of  tbe  carrier  substan- 
tially as  it  is  herein  expressed,  as  will  be  seen  from  the  following 
paragraph  in  the  opinion  of  Judge  Wallace:  "Unquestionabl}',  a 
common  carrier  is  always  entitled  to  a  reasonable  compensation  for 
his  services.  Hence  it  follows  that  he  is  not  required  to  treat  all 
those  who  patronize  hiui  with  absolute  equality.  It  is  his  privilege  to 
charge  less  than  a  fair  compensation  to  one  person,  or  to  a  class  of 
persons,  and  others  cannot  justly  complain  so  long  as  he  carries  on 
reasonable  terms  for  them.  Respecting  preference  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in 
each  particular  transaction,  and,  except  as  thus  restricted,  he  is  free 
to  discriminate  at  pleasure.  This  is  the  equal  justice  to  all  which 
the  law  exacts  from  the  common  carrier  in  his  relations  with  the 
public." 

But  it  is  urged  that  the  plaintiffs  were  in  fact  the  only  shippers  of 


LOUGH    V.    OUTERBRIDGE.  215 

goods  from  New  York  to  Barbadoes  1)}'  the  El  Callao,  and  therefore 
the  condition  imposed  that  the  reduced  rate  should  be  granted  only 
to  such  merchants  as  stipulated  to  give  the  defendants  their  entire 
business,  while  in  terms  imposed  upon  the  public  generally,  was  in 
fact  aimed  at  the  plaintiffs  alone.  The  trial  court  refused  to  find  this 
fact,  but,  assuming  that  it  appeared  from  the  undisputed  evidence, 
I  am  unable  to  see  how  it  could  affect  the  result.  The  significance 
which  the  learned  counsel  for  the  plaintiffs  seems  to  give  to  it  in  his 
argument  is  that  it  conclusively  shows  the  purpose  of  the  defendants 
to  compel  the  plaintiffs  to  withdraw  their  patronage  from  the  other 
line,  to  suppress  competition  in  the  business,  and  to  retain  a  monopoly 
for  their  own  benefit.  Conceding  that  such  was  the  purpose,  it  is  not 
apparent  how  any  obligation  that  the  defendants  owed  to  the  public 
was  disregarded.  We  have  seen  that  the  defendants  might  lawfully 
give  reduced  rates  in  special  cases,  and  refuse  them  in  others,  where 
the  conditions  are  dift'erent,  or  to  the  general  public,  where  the  regular 
rates  are  reasonable.  The  purpose  of  an  act  which  in  itself  is  per- 
fectly lawful,  or,  under  all  the  circumstances,  reasonable,  is  seldom, 
if  ever,  material.  Phelps  v.  Nowlen,  72  N.  Y.  39;  Kiff  v.  Youmans, 
86  N.  Y.  324.  Tlie  mere  fact  that  the  transportation  business  be- 
tween the  two  points  in  question  was  in  the  hands  of  the  defendants 
did  not  necessarily  create  a  monopoly,  if  the  general  rates  maintained 
were  reasonable  and  just.  It  is  not  pretended  that  the  owners  of  the 
El  Callao  proposed  to  give  regular  service  to  the  general  public  for 
any  less.  When  the  service  is  performed  for  a  reasonable  and  just 
hire,  the  public  have  no  interest  in  the  question  whether  one  or  many 
are  engaged  in  it.  The  monopoly  which  the  law  views  with  disfavor 
is  the  manipulation  of  a  business  in  which  the  public  are  interested 
in  such  a  way  as  to  enable  one  or  a  few  to  control  and  regulate  it  in 
their  own  interest,  and  to  the  detriment  of  the  public,  by  exacting 
unreasonable  charges.  But  when  an  individual  or  a  corporation  has 
established  a  business  of  a  special  and  limited  character,  such  as  the 
defendants  in  this  case  had,  they  have  a  right  to  retain  it  by  the  use 
of  all  lawful  means.  That  was  what  the  defendants  attempted  to  do 
against  a  competitor  that  engaged  in  it,  not  regularly  or  permanently, 
but  incidentally  and  occasionally.  The  means  adopted  for  this  pur- 
pose was  to  offer  the  service  to  the  public  at  a  loss  to  themselves 
whenever  the  competition  was  to  be  met,  and,  when  it  disappeared,  to 
resume  the  standard  rates,  which,  upon  the  record,  did  not  at  any  time 
exceed  a  reasonable  and  fair  charge.  I  cannot  perceive  anything 
unlawful  or  against  the  public  good  in  seeking  by  such  means  to  retain 
a  business  which  it  does  not  appear  was  of  sufficient  magnitude  to 
furnish  employment  for  both  lines.  On  this  branch  of  the  argument 
the  remarks  of  Lord  Coleridge  in  the  case  of  Steamship  Co.  v. 
McGregor,  supra,  are  applicable:  "The  defendants  are  traders,  with 
enormous  sums  of  money  embarked  in  their  adventure,  and  naturally 
and  allowably  desire  to  reap  a  profit  from  their  trade.     They  have  a 


216  LOUGH    V,    OUTERBRIDGE. 

right  to  push  their  lawful  trades  by  all  lawful  means.  They  have  a 
right  to  endeavor,  by  lawful  means,  to  keep  their  trade  in  their  own 
hands,  and  by  the  same  means  to  exclude  others  from  its  benefits,  if 
they  can.  Amongst  lawful  means  is  certainly  included  the  inducing, 
by  profitable  offers,  customers  to  deal  with  them,  ratlier  than  with 
their  rivals.  It  follows  that  they  may,  if  they  see  fit,  endeavor  to  in- 
duce customers  to  deal  with  them  exclusively  by  giving  notice  that 
only  to  exclusive  customers  will  they  give  the  advantage  of  their 
profitable  offers.  I  do  not  think  it  matters  that  the  withdrawal  of  the 
advantages  is  out  of  all  proportion  to  the  injury  inflicted  by  those 
who  withdraw  them  on  the  customers  who  decline  to  deal  exclusively 
with  them  dealing  with  other  traders."  The  courts,  I  admit,  should 
do  nothing  to  lessen  or  weaken  the  restraints  which  the  law  imposes 
upon  the  carrier,  or  in  any  degree  to  impair  his  obligation  to  serve  all 
persons  indifferently  in  his  calling,  in  the  absence  of  a  reasonable 
excuse,  and  for  a  reasonable  compensation  only ;  but  to  hold,  as  we 
are  asked  to  in  this  case,  that  the  plaintiffs  were  entitled  to  have  their 
goods  carried  by  the  defendants  at  an  unprofitable  rate,  without  com- 
pliance with  the  conditions  upon  which  it  was  granted  to  all  others, 
and  which  constituted  the  motive  and  inducement  for  the  offer,  would 
be  extending  these  obligations  beyond  the  scope  of  any  established 
precedent  based  upon  the  doctrine  of  the  common  law,  and  would,  I 
think,  be  contrary  to  reason  and  justice. 

The   judgment  of   the  court  below  dismissing  the  complaint  was 
right,  and  should  be  affirmed,  with  costs. 

Finch,  Gray,  and  Bartlett,  JJ.,  concur.     Peckham,  J.,  dissents. 

Andrews,  C.  J.,  not  sitting. 

Judgment  affirmed. 


INTERSTATE   COMMEKCE    COMMISSION    V.   BALT.    &   OHIO   E.      217 


CHAPTEK   IL 

THE   INTERSTATE    COMMERCE   ACT. 


INTERSTATE   COMMERCE  COMMISSION  v.  BALTIMORE  & 
OHIO    RAILROAD. 

Supreme  Court  of  the  United  States,  1892. 

[145  U.  S.  263.] 

This  proceeding  was  originally  instituted  by  the  filing  of  a  peti- 
tion before  the  Interstate  Commerce  Commission  by  the  Pittsburg, 
Cincinnati,  &  St.  Louis  Railway  Company  against  the  Baltimore  & 
Ohio  Railroad  Company,  to  compel  the  latter  to  withdraw  from  its 
lines  of  road,  upon  which  business  competitive  with  that  of  the  peti- 
tioner was  transacted,  the  so-called  "party  rates,"  and  to  decline  to 
give  such  rates  in  future  upon  such  lines  of  road;  also  for  an 
order  requiring  said  company  to  discontinue  the  practice  of  selling 
excursion  tickets  at  less  than  the  regular  rate,  unless  such  rates  were 
posted  in  its  offices,  as  required  by  law.  The  petition  set  forth 
that  the  two  roads  were  competitors  from  Pittsburg  westward;  that 
the  Baltimore  &  Ohio  road  had  in  operation  upon  its  competing  lines 
of  road  so-called  "party  rates,"  whereby  "parties  of  ten  or  more 
persons  travelling  together  on  one  ticket  will  be  transported  over 
said  lines  of  road  between  stations  located  thereon  at  two  cents  per 
mile  per  cajnfa,  which  is  less  than  the  rate  for  a  single  person ;  said 
rate  for  a  single  person  being  about  three  cents  per  mile."  ^  .   .   . 

The  cause  was  heard  before  the  commission,  which  found  "that 
so-called  'party  rate'  tickets,  sold  at  reduced  rates,  and  entitlina;  a 
number  of  persons  to  travel  together  on  a  single  ticket  or  otherwise, 
are  not  commutation  tickets,  within  the  meaning  of  section  22  of  the 
act  to  regulate  commerce,  and  that,  when  the  rates  at  which  such 
tickets  for  parties  are  sold  are  lower  for  each  member  of  the  party 
than  rates  contemporaneously  charged  for  the  transportation  of 
single  passengers  between  the  same  points,  they  constitute  unjust 
discrimination,  and  are  therefore  illegal."  It  was  ordered  and 
adjudged  "that  the  defendant,  the  Baltimore  &  Ohio  Railroad  Com- 
pany, do  forthwith  wholly  and  immediately  cease    and  desist  from 

1  Act  of  Feb.  4,  1887  ;  24  St.  379  ;  printed  in  McClaiu's  Cases,  App. 

2  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


218      INTERSTATE    COMMERCE    COMMISSION    V.    BALT.    &   OHIO   R. 

charging  rates  for  the  transportation  over  its  lines  of  a  number 
of  persons  travelling  together  in  one  party  which  are  less  for  each 
person  than  rates  contemporaneously  charged  by  said  defendant 
under  schedules  lawfully  in  effect  for  the  transportation  of  single 
passengers  between  the  same  points." 

The  defendant  road  having  refused  to  obey  this  mandate,  the  com- 
mission, on  May  1,  1890,  pursuant  to  section  16  of  the  Interstate 
Commerce  Act,  filed  this  bill  in  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Ohio  for  a  writ  of  injunction  to 
restrain  the  defendant  from  continuing  in  its  violation  of  the  order 
of  the  commission.    .   .   . 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

Prior  to  the  enactment  of  the  act  of  Fel)ruary  4,  1887,  to  regulate 
commerce,  commonly  known  as  the  "Interstate  Commerce  Act"  (24 
St.  379),  railway  traffic  in  this  country  was  regulated  by  the  princi- 
ples of  the  common  law  applicable  to  common  carriers,  which  de- 
manded little  more  than  that  they  should  carry  for  all  persons  who 
applied,  in  the  order  in  which  the  goods  were  delivered  at  the  partic- 
ular station,  and  that  their  charges  for  transportation  should  be 
reasonable.  It  was  even  doubted  whether  they  were  bound  to  m.ake 
the  same  charge  to  all  persons  for  the  same  service;  Fitchbnrg 
Eailroad  Co.  v.  Gage,  12  Gray,  393;  Baxendale  v.  Eastern  Counties 
Railway  Co.,  4  C.  B.  (N.  S.)  63;  Great  Western  Railway  Co.  v. 
Sutton,  L.  R.  4  H.  L.  226,  237;  Ex  parte  Benson,  18  s!  C.  38; 
Johnson  v.  Pensacola  Railway  Co.,  16  Fla.  623;  though  the  weight 
of  authority  in  this  country  was  in  favor  of  an  equality  of  charge  to 
all  persons  for  similar  services.  In  several  of  the  States  acts  had 
been  )>assed  with  the  design  of  securing  the  public  against  unreason- 
able and  unjust  discriminations;  but  the  iuefficacy  of  these  laws 
beyond  the  lines  of  the  State,  tlie  impossibility  of  securing  concerted 
action  between  the  legislatures  toward  the  regulation  of  traffic  be- 
tween the  several  States,  and  the  evils  which  grew  up  under  a  policy 
of  unrestricted  competition,  suggested  the  necessity  of  legislation 
by  Congress  under  its  constitutional  power  to  regulate  commerce 
among  the  several  States.  These  evils  ordinarily  took  the  shape  of 
inequality  of  charges  made,  or  of  facilities  furnished,  and  were 
usually  dictated  by  or  tolerated  for  the  promotion  of  the  interests  of 
the  officers  of  the  corporation  or  of  the  corporation  itself,  or  for  the 
benefit  of  some  favored  persons  at  the  expense  of  others,  or  of  some 
particular  locality  or  community,  or  of  some  local  trade  or  commer- 
cial connection,  or  for  the  destruction  or  crippling  of  some  rival 
or  hostile  line. 

The  principal  objects  of  the  Interstate  Commerce  Act  were  to 
secure  just  and  reasonable  charges  for  transportation;  to  prohibit 
unjust  discriminations  in  the  rendition  of  like  services  under  similar 
circumstances  and  conditions;  to  prevent  undue  or  unreasonable 
preferences  to  persons,  corporations,  or  localities ;  to  inhibit  greater 


INTERSTATE    COMMERCE    COMMISSION    V.    BALT.    &   OHIO   E.       219 

compensation  for  a  shorter  than  for  a  longer  distance  over  the  same 
line;  and  to  aboliBh  combinations  for  the  pooling  of  freights.  It  was 
not  designed,  however,  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fares  in  consideration  of  increased  mile- 
age, where  such  reduction  did  not  operate  as  an  unjust  discrimina- 
tion against  other  persons  tjavelling  over  the  road.  In  other  words, 
it  was  not  intended  to  ignore  the  principle  that  one  can  sell  at  whole- 
sale cheaper  than  at  retail.  It  is  not  all  discriminations  or  preferences 
that  fall  within  the  inhibition  of  the  statute,  — only  such  as  are  unjust 
or  unreasonable.  For  instance,  it  would  be  obviously  unjust  to 
charge  A.  a  greater  sum  than  B.  for  a  single  trip  from  Washington  to 
Pittsburg;  but,  if  A.  agrees  not  only  to  go,  but  to  return  by  the 
same  route,  it  is  no  injustice  to  B.  to  permit  him  to  do  so  for  a 
reduced  fare,  since  the  services  are  not  alike,  nor  the  circumstances 
and  conditions  substantially  similar,  as  required  by  section  2  to 
make  an  unjust  discrimination.  Indeed,  the  possibility  of  just 
discriminations  and  reasonable  preferences  is  recognized  by  these 
sections,  in  declaring  what  shall  be  deemed  unjust.  We  agree, 
however,  with  the  plaintiff  in  its  contention  that  a  charge  ma}'  be 
perfectly  reasonable  under  section  1,  and  yet  may  create  an  unjust 
discrimination  or  an  unreasonable  preference  under  sections  2  and  3. 
As  was  said  by  Mr.  Justice  Blackburn  in  Great  Western  Eailway 
Co.  I-.  Sutton,  L.  R.  4  H.  L.  226,  239:  "When  it  is  sought  to  show 
that  the  charge  is  extortionate,  as  being  contrary  to  the  statutable 
obligation  to  charge  equally,  it  is  immaterial  whether  the  charge 
is  reasonable  or  not;  it  is  enough  to  show  that  the  company  carried 
for  some  other  person  or  class  of  persons  at  a  lower  charge  during 
the  period  throughout  which  the  party  complaining  was  charged 
more  under  the  like  circumstances." 

The  question  involved  in  this  case  is  whether  the  principle  above 
stated,  as  applicable  to  two  individuals,  applies  to  the  purchase  of 
a  single  ticket  covering  the  transportation  of  10  or  more  persons  from 
one  place  to  another.  These  are  technically  known  as  "party  rate 
tickets,"  and  are  issued  principally  to  theatrical  and  operatic  com- 
panies for  the  transportation  of  their  troupes.  Such  ticket  is  clearly 
neither  a  "mileage"  nor  an  "excursion  "  ticket  within  the  exception 
of  section  22;  and  upon  the  testimony  in  this  case  it  may  be  doubt- 
ful whether  it  falls  within  the  definition  of  "commutation  tickets," 
as  those  words  are  commonly  understood  among  railway  olHcials. 
The  words  "commutation  ticket"  seem  to  have  no  definite  meaning. 
They  are  defined  by  Webster  (edition  of  1891)  as  "a  ticket,  as 
for  transportation,  which  is  the  evidence  of  a  contract  for  service  at 
a  reduced  rate."  If  this  definition  be  applicable  here,  then  it  is  clear 
that  it  would  include  a  party  rate  ticket.  In  the  langnage  of  the 
railway,  however,  they  are  principally,  if  not  wholly,  used  to  desig- 
nate tickets  for  transportation  during  a  limited  time  between  neigh- 


220      INTERSTATE    COMMERCE    COMMISSION    V.    BALT.    &    OHIO   R. 

boring  towns,  or  cities  and  suburban  towns.  The  party  rate  ticket 
upon  the  defendant's  road  is  a  single  ticket,  issued  to  a  party  of  10 
or  more,  at  a  fixed  rate  of  2  cents  per  mile,  or  a  discount  of  one  third 
from  the  regular  passenger  rate.  The  reduction  is  not  made  by  way 
of  a  secret  rebate  or  drawback,  but  the  rates  are  scheduled,  posted, 
and  open  to  the  public  at  large. 

But,  assuming  the  weight  of  evidence  in  this  case  to  be  that  the 
party  rate  ticket  is  not  a  "commutation  ticket,"  as  that  word  was 
commonly  understood  at  the  time  of  the  passage  of  the  act,  but  is  a 
distinct  class  by  itself,  it  does  not  necessarily  follow  that  such 
tickets  are  unlawful.  The  unlawfulness  defined  by  sections  2  and  3 
consists  either  in  an  "  unjust  discrimination"  or  an  "undue  or  un- 
reasonable preference  or  advantage,"  and  the  object  of  section  22  was 
to  settle,  beyond  all  doubt,  that  the  discrimination  in  favor  of  cer- 
tain persons  therein  named  should  not  be  deemed  unjust.  It  does 
not  follow,  however,  that  there  may  not  be  other  classes  of  persons 
in  whose  favor  a  discrimination  may  be  made  without  such  discrim- 
ination being  unjust.  In  other  words,  this  section  is  rather  illustra- 
tive than  exclusive.  Indeed,  many,  if  not  all,  the  excepted  classes 
named  in  section  22  are  those  which,  in  the  absence  of  this  section, 
would  not  necessarily  be  held  the  subjects  of  an  unjust  discrimina- 
tion, if  more  favorable  terms  were  extended  to  them  than  to  ordinary 
passengers.  Such,  for  instance,  are  property  of  the  United  States, 
State,  or  municipal  governments;  destitute  and  homeless  persons 
transported  free  of  charge  by  charitable  societies;  indigent  pej-sons 
transported  at  the  expense  of  municipal  governments;  inmates  of 
soldiers'  homes,  etc.,  and  ministers  of  religion,  — in  favor  of  whom  a 
reduction  of  rates  had  been  made  for  many  years  before  the  passage 
of  the  act.  It  ma}'  even  admit  of  serious  doubt  whether,  if  the  mile- 
age, excursion,  or  commutation  tickets  had  not  been  mentioned  at  all 
in  this  section,  they  would  have  fallen  within  the  prohibition  of 
sections  2  and  3;  in  other  woixls,  whether  the  allowance  of  a  reduced 
rate  to  persons  agreeing  to  travel  1,000  miles,  or  to  go  and  return  by 
the  same  road,  is  a  "like  and  contemporaneous  service  under  sub- 
stantially similar  conditions  and  circumstances  "  as  is  rendered  to  a 
person  who  travels  upon  an  ordinary  single  trip  ticket.  If  it  be  so, 
then,  under  State  laws  forbidding  unjust  discriminations,  every  such 
ticket  issued  between  points  within  the  same  State  must  be  illegal. 
In  view  of  the  fact,  however,  that  every  railway  company  issues  such 
tickets;  that  there  is  no  reported  case.  State  or  federal,  wherein 
their  illegality  has  been  questioned;  that  there  is  no  such  case  in  Eng- 
land; and  that  the  practice  is  universally  acquiesced  in  by  the 
public,  —  it  would  seem  that  the  issuing  of  such  tickets  should  not  be 
held  an  unjust  discrimination  or  an  unreasonable  preference  to  the 
persons  travelling  upon  them. 

But,  whether  these  party  rate  tickets  are  commutation  tickets 
proper,  as   known   to   railway  officials,  or   not,    they  are   obviously 


INTERSTATE    COMMERCE    COMMISSION   V.    BALT.    &   OHIO   R.      221 

within  the  commuting  principle.  As  stated  in  the  opinion  of  Judge 
Sage  in  the  court  below:  "The  difference  between  commutation  and 
party  rate  tickets  is  that  commutation  tickets  are  issued  to  induce 
people  to  travel  more  frequently,  and  party  rate  tickets  are  issued  to 
induce  more  people  to  travel.  There  is,  however,  no  difference  in 
principle  between  them,  the  object  in  both  cases  being  to  increase 
travel  without  unjust  discrimination,  and  to  secure  patronage  that 
would  not  otherwise  be  secured." 

The  testimony  indicates  that  for  many  years  before  the  passage  of 
the  act  it  was  customary  for  railroads  to  issue  tickets  at  reduced  rates 
to  passengers  making  frequent  trips,  —  trips  for  long  distances,  and 
trips  in  parties  of  10  or  more,  lower  than  the  regular  single  fare 
charged  between  the  same  points;  and  such  lower  rates  were  univer- 
sally made  at  the  date  of  the  passage  of  the  act.  As  stated  in  the 
answer,  to  meet  the  needs  of  the  commercial  traveller,  the  1,000-mile 
ticket  was  issued;  to  meet  the  needs  of  the  suburban  resident  or 
frequent  traveller,  several  forms  of  tickets  were  issued.  For  exam- 
ple, monthly  or  quarterly  tickets,  good  for  any  number  of  trips  within 
the  specified  time;  and  10,  25,  or  50  trip  tickets,  good  for  a  specified 
number  of  trips  by  one  person,  or  for  one  trip  by  a  specified  number 
of  persons;  to  accommodate  parties  of  10  or  more,  a  single  ticket, 
one  way  or  round  trip,  for  the  whole  party,  was  made  up  by  the  agent 
on  a  skeleton  form  furnished  for  that  purpose;  to  accommodate  excur- 
sionists travelling  in  parties  too  large  to  use  a  single  ticket,  special 
individual  tickets  were  issued  to  each  person.  Tickets  good  for  a 
specified  number  of  trips  were  also  issued  between  cities  where  travel 
was  frequent.  In  short,  it  was  an  established  principle  of  the  busi- 
ness that  whenever  the  amount  of  travel  more  than  made  up  to  the 
carrier  for  the  reduction  of  the  charge  per  cajjita,  then  such  reduction 
was  reasonable  and  just  in  the  interests  both  of  the  carrier  and  of 
the  public.  Although  the  fact  that  i-ailroads  had  long  been  in  the 
habit  of  issuing  these  tickets  would  be  by  no  means  conclusive  evi- 
dence that  they  were  legal,  since  the  main  purpose  of  the  act  was  to 
put  an  end  to  certain  abuses  which  had  crept  into  the  management 
of  railroads,  yet  Congress  may  be  presumed  to  have  had  those  prac- 
tices in  view,  and  not  to  have  designed  to  interfere  with  them,  except 
so  far  as  they  were  unreasonable  in  themselves,  or  unjust  to  others. 
These  tickets,  then,  being  within  the  commutation  principle  of 
allowing  reduced  rates  in  consideration  of  increased  mileage,  the 
real  question  is  whether  this  operates  as  an  undue  or  unreasonable 
preference  or  advantage  to  this  particular  description  of  traffic,  or  an 
unjust  discrimination  against  others.  If,  for  example,  a  railway 
makes  to  the  public,  generally,  a  certain  rate  of  freight,  and  to  a 
particular  individual  residing  in  the  same  town  a  reduced  rate  for 
the  same  class  of  goods,  this  may  operate  as  an  undue  preference, 
since  it  enables  the  favored  party  to  sell  his  goods  at  a  lower  price 
than  his  competitors,  and  may  even  enable  him  to  obtain  a  complete 


222      IjSTTEESTATE    commerce    commission    v.    BALT.    &    OHIO   E. 

monopoly  of  that  business.  Even  if  the  same  reduced  rate  be  allowed 
to  every  one  doing  the  same  amount  of  business,  such  discrimination 
may,  if  carried  too  far,  operate  unjustly  upon  the  smaller  dealers 
engaged  in  the  same  business  and  enable  the  larger  ones  to  drive 
them  out  of  the  market. 

The  same  result,  however,  does  not  follow  from  the  sale  of  a  ticket 
for  a  number  of  passengers  at  a  less  rate  than  for  a  single  passenger; 
it  does  not  operate  to  the  prejudice  of  the  single  passenger,  Avho 
cannot  be  said  to  be  injured  by  the  fact  that  another  is  able,  in  a  par- 
ticular instance,  to  travel  at  a  less  rate  than  he.  If  it  operates  injuri- 
ously towards  any  one  it  is  the  rival  road,  which  has  not  adopted 
corresponding  i-ates;  but,  as  before  observed,  it  was  not  the  design  of 
the  act  to  stifle  competition,  nor  is  there  any  legal  injustice  in  one 
person  procuring  a  particular  service  cheaper  than  another.  If  it  be 
lawful  to  issue  these  tickets,  then  the  Pittsburg,  Chicago,  &  St. 
Louis  Railway  Company  has  the  same  right  to  issue  them  that  the 
defendant  has,  and  may  compete  with  it  for  the  same  traffic;  but  it 
is  unsound  to  argue  that  it  is  unlawful  to  issue  them  because  it  has 
not  seen  fit  to  do  so.  Certainly  its  construction  of  the  law  is  not 
binding  upon  this  court.  The  evidence  shows  that  the  amount  of 
business  done  by  means  of  these  party  rate  tickets  is  very  large;  that 
theatrical  and  operatic  companies  base  their  calculation  of  profits  to 
a  certain  extent  upon  the  reduced  rates  allowed  by  railroads;  and 
that  the  attendance  at  conventions,  political  and  religious,  social 
and  scientific,  is,  in  a  great  measure,  determined  by  the  ability  of 
the  delegates  to  go  and  come  at  a  reduced  charge.  If  these  tickets 
were  withdrawn,  the  defendant  road  would  lose  a  large  amount  of 
travel,  and  the  single  trip  passenger  would  gain  absolutely  nothing. 
If  a  case  were  presented  where  a  railroad  refused  an  application  for  a 
party  rate  ticket  upon  the  ground  that  it  was  not  intended  for  the 
use  of  the  general  public,  but  solely  for  theatrical  troupes,  there 
would  be  much  greater  reason  for  holding  that  the  latter  were  favored 
with  an  undue  preference  or  advantage. 

In  order  to  constitute  an  unjust  discrimination  under  section  2  the 
carrier  must  charge  or  receive  directl}'  from  one  person  a  greater  or 
less  compensation  than  from  another,  or  must  accomj)lish  the  same 
thing  indirectly  by  means  of  a  special  rate,  rebate,  or  other  device; 
but,  in  either  case,  it  must  be  for  a  "like  and  contemporaneous  ser- 
vice in  the  transportation  of  a  like  kind  of  traffic,  under  substantially 
similar  circumstances  and  conditions."  To  bring  the  present  case 
within  the  words  of  this  section,  we  must  assume  that  the  transporta- 
tion of  10  persons  on  a  single  ticket  is  substantially  identical  with 
the  transportation  of  one,  and,  in  view  of  the  universally  accepted 
fact  that  a  man  may  buy,  contract,  or  manufacture  on  a  large  scale 
cheaper  proportionately  than  upon  a  small  scale,  this  is  impossible. 

In  this  connection  we  quote  with  approval  from  the  opinion  of 
Judge  Jackson  in  the  court  below:  "  To  come  within  the  inhibition 


INTERSTATE    COMMERCE    COMMISSION    T.    HALT.    &    OHIO   R.      223 

of  said  sections,  tlie  differences  must  be  made  under  like  conditions; 
that  is,  there  must  be  contemporaneous  service  in  the  transportation 
of  like  kinds  of  trallic  under  substantially  the  same  circumstances 
and  conditions.  In  respect  to  passenger  traffic,  the  positions  of  the 
respective  persons  or  classes  between  whom  differences  in  charges  are 
made  must  be  compared  with  each  other,  and  there  must  be  found  to 
exist  substantial  identity  of  situation  and  of  service,  accompanied  by 
irregularity  and  partiality  resulting  in  undue  advantage  to  one,  or 
undue  disadvantage  to  the  other,  in  order  to  constitute  unjust 
discrimination." 

The  English  Trallic  Act  of  1854  contains  a  clause  similar  to  sec- 
tion 3  of  the  Interstate  Commerce  Act,  that  "no  such  company  shall 
make  or  give  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,  nor  shall  any  such 
company  subject  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage in  any  respect  whatsoever," 

In  Hozier  r.  Caledonian  Railroad  Co.,  17  Sess.  Cas.  (D)  302,  1 
Nev.  &  McN.  27,  complaint  was  made  by  one  who  had  frequent 
occasion  to  travel,  that  passengers  from  .an  intermediate  station  be- 
tween Glasgow  and  Edinburgh  were  charged  much  greater  rates  to 
those  places  than  were  charged  to  other  through  passenger's  between 
these  termini ;  but  the  Scotch  Court  of  Session  held  that  the  peti- 
tioner had  not  shown  anj'  title  or  interest  to  maintain  the  proceeding; 
his  only  complaint  being  that  he  did  not  choose  that  parties  travelling 
from  Edinburgh  to  Glasgow  should  enjoy  the  benefit  of  a  cheaper 
rate  of  travel  than  he  himself  could  enjoy.  "  It  provides,"  said  the 
court,  "  for  giving  undue  preference  to  parties  pari  jjassu  in  the 
matter,  but  you  must  bring  them  into  competition  in  order  to  give 
them  an  interest  to  complain."  This  is  in  substance  holding  that 
the  allowance  of  a  reduced  through  rate  worked  no  injustice  to 
passengers  living  on  the  line  of  the  road,  who  were  obliged  to  pay 
at  a  greater  rate.  So  in  Jones  v.  Eastern  Counties  Railway  Co.,  3 
C.  B.  (N.  S.)  718,  the  court  refused  an  injunction  to  compel  a  railway 
company  to  issue  season  tickets  between  Colchester  and  London 
upon  the  same  terms  as  they  issued  them  between  Harwich  and 
London,  upon  the  mere  suggestion  that  the  granting  of  the  latter,  the 
distance  being  considerably  greater,  at  a  much  lower  rate  than  the 
former,  was  an  undue  and  unreasonable  preference  of  the  inhabitants 
of  Harwich  over  those  of  Colchester.  Upon  the  other  hand,  in  Ran- 
some  IK  Eastern  Counties  Railway  Co.,  1  C.  B.  (N.  S.)  437,  wdiere  it 
was  manifest  that  a  railway  company  charged  Ipswich  merchants, 
who  sent  from  thence  coal  which  had  come  thither  by  sea,  a  higher 
rate  for  the  carriage  of  their  coal  than  it  charged  Peterboro  mer- 
chants, who  had  made  arrangements  with  it  to  carry  large  quantities 
over  its  lines,  and  that  the  sums  charged  the  Peterboro  merchants  were 


22-i      INTEESTATE   COMMERCE    COMMISSION    V.   BALT.    &   OHIO    E. 

fixed  so  as  to  enable  them  to  compete  with  the  Ipswich  merchants, 
the  court  granted  an  injunction,  upon  the  ground  of  an  undue 
preference  to  the  Peterboro  merchants,  the  object  of  the  discrimina- 
tion being  to  benefit  the  one  dealer  at  the  expense  of  the  other,  by 
depriving  the  latter  of  the  natural  advantages  of  his  position.  In 
Ox  lade  v.  Northeastern  Railway  Co.,  1  C.  B.  (N.  S.)  454,  a  railway 
company  was  held  justified  in  carrying  goods  for  one  person  for  a 
less  rate  than  that  at  which  they  carried  the  same  description  of  goods 
for  another,  if  there  be  circumstances  which  render  the  cost  of  carry- 
ing the  goods  for  the  former  less  than  the  cost  of  carrying  them  for 
the  latter,  but  that  a  desire  to  introduce  northern  coke  into  a  certain 
district  was  not  a  legitimate  ground  for  making  special  agreements 
with  different  merchants  for  the  carriage  of  coal  and  coke  at  a  rate 
lower  than  the  ordinary  charge,  there  being  nothing  to  show  that  the 
pecuniary  interests  of  the  company  were  affected;  and  that  this  was 
an  undue  preference. 

In  short,  the  substance  of  all  these  decisions  is  that  railway  com- 
panies are  only  bound  to  give  the  same  terms  to  all  persons  alike 
under  the  same  conditions  and  circumstances,  and  that  any  fact 
which  produces  an  inequality  of  condition  and  a  change  of  circum- 
stances justifies  an  inequality  of  charge.  These  traffic  acts  do  not 
appear  to  be  as  comprehensive  as  our  own,  and  may  justify  contracts 
which  with  us  would  be  obnoxious  to  the  long  and  short  haul  chuise 
of  the  act,  or  would  be  open  to  the  charge  of  unjust  discrimination. 
But,  so  far  as  relates  to  the  question  of  "  undue  preference,"  it  may 
be  presumed  that  Congress,  in  adopting  the  language  of  the  English 
act,  had  in  mind  the  construction  given  to  these  words  by  the  Eng- 
lish courts,  and  intended  to  incorporate  them  into  the  statute. 
McDonald  v.  Hovey,  110  U.  S.  619. 

There  is  nothing  in  the  objection  that  party  rate  tickets  afford 
facilities  for  speculation,  and  that  they  would  be  used  by  ticket 
brokers  or  "scalpers"  for  the  purpose  of  evading  the  law.  The 
party  rate  ticket,  as  it  appears  in  this  case,  is  a  single  ticket  cover- 
ing the  transportation  of  10  or  more  persons,  and  would  be  much  less 
available  in  the  hands  of  a  ticket  broker  than  an  ordinary  single 
ticket,  since  it  could  only  be  disposed  of  to  a  person  who  would  be 
willing  to  pay  two  thirds  of  the  regular  fare  for  that  number  of 
people.  It  is  possible  to  conceive  that  party  rate  tickets  may,  by  a 
reduction  of  the  number  for  whom  they  may  be  issued,  be  made  the 
pretext  for  evading  the  law,  and  for  the  purpose  of  cutting  rates; 
but  should  such  be  the  case,  the  courts  would  have  no  difficulty  in 
discovering  the  purpose  for  which  they  were  issued,  and  appl^'ing  the 
proper  remedy. 

Upon  the  whole,  we  are  of  the  opinion  that  party  rate  tickets,  as 
used  by  the  defendant,  are  not  open  to  the  objections  found  by  the 
Interstate  Commerce  Commission,  and  are  not  in  violation  of  the  act 
to  regulate  commerce,  and  the  decree  of  the  court  below  is  therefore 

Affirmed. 


ILWACO    E.    &   N.    CO.    V.   OEEGOX    SHORT    LINE    &   UTAH   N.    R.      225 


ILWACO  RAILWAY  &  NAVIGATION  COMPANY  v.  OREGON 
SHORT  LINP:  &  UTAH  northern  RAILWAY^ 

CiiiCUiT  Court  of  Appeals,  Ninth  Circuit,  18U3. 

[57  Fed.  673.] 

McKenna,  Circuit  Judge. ^  The  plaintiff  contends  that  defendant, 
by  preventing  it  from  landing  its  boats  at  a  wharf  owned  and  used 
by  defendant,  discriminates  against  it,  contrary  to  section  3  of  the 
Interstate  Commerce  Act. 

The  facts  are  as  follows :  — 

That  prior  to  the  month  of  August,  1888,  the  defendant  was. 
named  the  Ilwaco  Steam  Navigation  Company,  but  in  that  month  it 
filed  supplemental  articles  of  incorporation,  changing  its  name  to 
Ilwaco  Railway  &  Navigation  Company,  and  proceeded  to  construct 
a  line  of  railway  from  a  point  at  or  near  the  town  of  Ilwaco  on  the 
Pacific  Ocean,  in  the  State  of  Washington,  to  a  point  on  the  navi- 
gable waters  of  Shoal  Water  Bay,  in  Pacific  County.  That  the 
construction  of  said  railway  was  commenced  before,  but  completed 
after,  the  filing  of  said  supplemental  articles.  That  prior  to  the 
construction  of  said  railroad  line  the  defendant  owned  and  operated 
a  line  of  steamboats  between  the  town  of  Astoria,  Or.,  and  the  town 
of  Ilwaco.  That  the  shores  of  the  Pacific  Ocean  in  that  vicinity  were 
popular  summer  resorts  during  the  months  of  July  and  August  and 
the  first  week  of  September.  That  prior  to  1888  the  Oregon  Railway 
&  Navigation  Company  owned  the  boats  and  line  between  Astoria 
and  Portland,  Or.,  which  plaintiff  now  owns,  and  carried  passengers 
from  Portland  to  Astoria,  which  were  then  transferred  to  plaintiff's 
boats,  and  carried  to  Ilwaco,  from  whence  they  went  to  the  ocean 
beach  in  wagons.  That  in  the  summer  season  of  the  years  1888, 
1889,  1890,  and  1891  the  Oregon  Railway  &  Navigation  Company 
asked  and  obtained  permission  to  land  its  passengers  on  the  wharf 
at  Ilwaco,  paying  a  compensation  therefor.  That  complainant  only 
ran  its  boats  during  said  summer  months,  and  onlv  while  people 
were  travelling  to  said  summer  resorts.  Said  town  of  Portland,  Or., 
is  situated  on  the  Willamette  River,  about  100  miles  inland,  easterly 
from  the  said  city  of  Astoria,  which  latter  city  is  situated  on  the  left 
bank  of  the  Columbia  River,  and  about  12  miles  inland  from  the 
ocean ;  and  the  town  of  Ilwaco  is  situated  on  the  right  bank  of  the 
Columbia  River,  at  a  part  thereof  known  as  "  Baker's  Bay,"  and 
about  15  miles  distant,  in  a  northwesterly  direction,  from  said  city 
of  Astoria.  That  in  the  year  1892  complainant  desired  the  same 
privileges,  but  respondent  refused.   .   .   . 

The  defendant  company  was  organized  for  the  purpose  of  construct- 
ing a  transportation  route  from  Astoria,  Or.,  to  Shoal  Water  Bay, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 
15 


226      ILWACO   K.    &   N.    CO.    V.    OREGON    SHORT   LINE    &   UTAH    N.    R. 

Wash.  Its  means  of  transportation  are  steamboats  and  a  railroad. 
The  wharf  at  llwaco  makes  the  connection  between  them,  and  the 
continuity  of  the  route.  The  act  contemplates,  we  think,  indepen- 
dent carriers,  capable  of  mutual  relations,  and  capable  of  being 
objects  of  favor  or  prejudice.  There  must  be  at  least  two  other 
carriers  besides  the  offending  one.  F'or  a  carrier  to  prefer  itself  in  its 
own  proper  business  is  not  the  discrimination  which  is  condemned. 

We  do  not  think  that  the  cases  cited  by  appellee  militate  with 
these  views,  nor  do  they  justify  a  railroad  company  combining  with 
its  proper  business  a  business  not  cognate  to  it,  and  discriminating 
in  favor  of  itself,  as  it  might  in  counsel's  illustration  of  a  combina- 
tion of  a  railroad  company  with  the  Standard  Oil  Company,  or  as 
illustrated  in  the  cases  of  Baxendale  v.  Great  Western  Ey.  Co.,  1 
Railway  &  Canal  Traffic  Cas.  202;  Same  v.  London  &  S.  W.  Ry.  Co., 
Id.  231;  and  Parkinson  v.  Railway  Co.,  Id.  280.  In  all  these 
cases  the  railroad  company  attempted  to  discriminate  in  favor  of 
itself  as  carrier,  separate  from  its  capacity  as  a  railway  carrier.  We 
find  no  difficulty  of  concurring  in  these  cases,  and  distinguishing 
them  from  the  case  at  bar.  It  was  not  to  engage  in  the  business  of 
drayman,  as  Cockburn,  C.  J.,  indicates  in  the  first  case,  that  great 
powers  have  been  given  to  railway^  companies,  and,  if  permitted  to 
be  so  used,  might  indeed  be  converted  into  a  means  of  very  grievous 
oppression.  The  principle  of  these  cases  does  not  extend  to  boats 
owned  by  railroads,  as  a  part  of  a  continuous  line.  Nor  do  we 
think  the  case,  Indian  River  Steamboat  Co.  v.  East  Coast  Transp. 
Co.  (Fla.),  10  South.  Rep.  480,  sustains  complainant.  It  was  a  case 
of  discrimination.  The  action  was  between  two  competing  steam- 
boat companies,  in  favor  of  one  of  which  a  railroad  company  had 
discriminated  by  leasing  its  wharf.  Both  companies  were  indepen- 
dent of  the  railroad,  and  both  connecting  lines  with  it.  But  the 
court  recognized  the  right  of  the  railroad  company  and  the  Indian 
River  Company  to  build  and  maintain  a  wharf,  as  incidental  to  their 
business,  saying:  "  If  either  company  should  erect  a  dock  or  wharf 
for  its  private  use,  we  know  of  no  law  to  prohibit  it."  Page  492. 
The  steamboats  were  competing  lines,  and  the  statutes  of  Florida 
regulating  railroads  provided  that  no  common  carriers  subject  to  the 
provisions  should  "  make  any  unjust  discrimination  in  the  receiving 
of  freight  from  or  the  delivery  of  freight  to  any  competing  lines  of 
steamboats  in  this  State."  The  decision,  therefore,  was  sustained  by 
the  laws  of  the  State.  The  reasoning  of  the  court,  beyond  this,  seems 
to  be  in  conflict  with  the  Express  Cases  decided  by  the  Supreme 
Court  of  the  United  States.     117  U.  S.  29. 

It  is  not  clear  what  complainant  claims  from  the  second  sub- 
division of  section  3,  besides  what  it  claims  from  the  first  subdivis- 
ion.    The  second  subdivision  is  as  follows:  — 

"  Every  common  carrier  subject  to  the  provisions  of  this  act  shall, 
according  to  their  respective  ^powers,  afford  all  reasonable,  proper, 


LITTLE  ROCK  &  MEMPHIS  K.  V.  ST.  LOUIS  SOUTHWESTERN  R.      227 

aud  equal  facilities  for  the  interchange  of  traffic  between  their  re- 
spective lines,  and  for  the  receiving,  forwarding,  and  delivering  of 
passengers  and  property  to  and  from  their  several  lines  and  those 
connecting  therewith,  and  shall  not  discriminate  in  their  rates  and 
charges  between  such  connecting  lines;  but  this  shall  not  be  construed 
as  requiring  any  such  common  carrier  to  give  the  use  of  its  tracks  or 
terminal  facilities  to  another  carrier  engaged  in  like  business." 

The  contention  of  eomi)lainant  is  not  that  defendant's  facilities 
are  inadequate,  but  that  it  is  excluded  from  them.  The  exclusion, 
however,  only  consists  in  the  prevention  of  the  lauding  of  its  boats 
at  defendant's  wharf.  We  have  probably  said  enough  to  indicate  our 
views  of  this,  but  we  may  add  that  the  wharf  does  not  seem  to  be  a 
public  station.  It  is  a  convenience,  only,  in  connecting  its  railroads 
and  boats;  the  general  station  being  at  Ilwaco,  where  ample  facili- 
ties exist. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings. 


LITTLE   ROCK    &    MEMPHIS    RAILROAD   v.    ST.    LOUIS 
SOUTHWESTERN    RAILWAY. 

Circuit  Court  of  Appeals,  Eighth  Circuit,  1894. 
[63  Fed.  775.] 

Thayer,  Circuit  Judge,  delivered  the  opinion  of  the  court. 

It  will  be  observed  that  the  sole  question  in  the  cases  filed  against 
the  St.  Louis,  Iron  Mountaui,  &  Southern  Railway  Company  concerns 
the  right  of  that  company  to  require  the  prepayment  of  freight 
charges  on  all  property  tendered  to  it  for  transportation  at  Little 
Rock  by  the  Little  Rock  &  Memphis  Railroad  Company,  while  it 
pursues  a  different  practice  with  respect  to  freight  received  from  other 
shippers  at  that  station.  At  common  law  a  railroad  corporation 
has  an  undoubted  right  to  require  the  prepayment  of  freight  charges 
by  all  its  customers,  or  some  of  them,  as  it  may  think  best.  It  has 
the  same  right  as  any  other  individual  or  corporation  to  exact  pay- 
ment for  a  service  before  it  is  rendered,  or  to  extend  credit.  Oregon 
Short  Line  &  U.  N.  Ry.  Co.  r.  Northern  Pac.  R.  Co.,  51  Fed.  465, 
472.  Usually,  no  doubt,  railroad  companies  find  it  to  their  interest, 
and  most  convenient,  to  collect  charges  from  the  consignee;  but  we 
cannot  doubt  their  right  to  demand  a  reasonable  compensation  in 
advance  for  a  proposed  service,  if  they  see  fit  to  demand  it.  This 
common  law  right  of  requiring  payment  in  advance  of  some  customers, 
and  of  extending  credit  to  others,  has  not  been  taken  away  b}^  the 
Interstate  Commerce  Law,  unless  it  is  taken  away  indirectly  by  the 
inhibition  contained  in  the  third  section  of  the  act,  which  declares 
that  an  interstate  carrier  shall  not  "  subject  any  particular  person, 


228      LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

company,  corporation,  or  locality  ...  to  any  uudiie  or  unreasonable 
.  .  .  disadvantage  in  any  respect  whatever."  This  prohibition  is 
very  broad,  it  is  true,  but  it  is  materially  qualified  and  restricted  by 
the  words  "  undue  or  unreasonable."  One  person  or  corporation  may 
be  lawfully  subjected  to  some  disadvantage  in  comparison  with  others, 
provided  it  is  not  an  undue  or  unreasonable  disadvantage.  In  view 
of  the  fact  that  all  persons  and  corporations  are  entitled  at  common 
law  to  determine  for  themselves,  and  on  considerations  that  are  satis- 
factory to  themselves,  for  whom  they  will  render  services  on  credit, 
we  are  not  prepared  to  hold  that  an  interstate  carrier  subjects  another 
carrier  to  an  unreasonable  or  undue  disadvantage  because  it  exacts  of 
that  carrier  the  prepayment  of  freight  on  all  property  received  from 
it  at  a  given  station,  while  it  does  not  require  charges  to  be  paid  in 
advance  on  freight  received  from  other  individuals  and  corporations 
at  such  station.  So  far  as  we  are  aware,  no  complaint  had  been  made 
of  abuses  of  this  character  at  the  time  the  Interstate  Commerce  Law 
was  enacted,  and  it  may  be  inferred  that  the  particular  wrong  com- 
plained of  was  not  within  the  special  contemplation  of  Congress. 
This  being  so,  the  general  words  of  the  statute  ought  not  to  be  given 
a  scope  which  will  deprive  the  defendant  company  of  an  undoubted 
common  law  right,  which  all  other  individuals  and  corporations  are 
still  privileged  to  exercise,  and  ordinarily  do  exercise.  It  is  most 
probable  that  self-interest  —  the  natural  desire  of  all  carriers  to  secure 
as  much  patronage  as  possible  —  will  prevent  this  species  of  dis- 
crimination from  becoming  a  public  grievance  so  far  as  individual 
shippers  are  concerned;  and  it  is  desirable  that  the  courts  should 
interfere  as  little  as  possible  with  those  business  rivalries  existing 
betAveen  railroad  corporations  themselves,  which  are  not  productive 
of  any  serious  inconvenience  to  shippers.  We  think,  therefore,  that 
no  error  was  committed  in  entering  the  judgment  and  decree  in  favor 
of  the  St.  Louis,  Iron  Mountain,  &  Southern  Railway  Company. 

The  complaint  preferred  against  the  other  companies,  to  wit,  the 
St.  Louis  Southwestern  and  the  Little  Rock  &  Ft.  Smith  Railway 
Companies,  is  somewhat  different.  It  consists  in  the  alleged  refusal 
of  those  companies,  —  first,  to  honor  through  tickets  and  through 
bills  of  lading  issued  by  the  complainant  company,  or  to  enter  into 
arrangements  with  it  for  through  billing  or  through  rating;  and,  sec- 
ondly, in  the  alleged  refusal  of  these  companies  to  accept  loaded  cars 
coming  from  the  Little  Rock  &  Memphis  Railroad,  and  in  their 
action  in  requiring  freight  to  be  rebilled  and  reloaded  at  the  two 
connecting  points,   to  wit,   Brinkley  and  Little  Rock. 

Before  discussing  the  precise  issue  which  arises  upon  this  record  it 
will  be  well  to  restate  one  or  two  propositions  that  are  supported  by 
high  authority  as  well  as  persuasive  reasons,  and  which  do  not  seem 
to  be  seriously  controverted  even  by  the  complainant's  counsel.  In 
the  first  place,  the  interstate  commerce  law  does  not  require  an  inter- 
state carrier  to  treat  all   other  connecting  carriers  in  precisely  the 


LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R.       229 

same  manner,  without  reference  to  its  own  interests.  Some  play  is 
given  by  the  act  to  self-interest.  The  inhibitions  of  the  third  sec- 
tion of  the  law,  against  giving  preferences  or  advantages,  are  aimed 
at  those  which  are  "undue  or  unreasonable";  and  even  that  clause 
which  requires  carriers  "to  afford  all  reasonable,  proper,  and  equal 
facilities  for  the  interchange  of  traflic "  does  not  require  that  such 
"equal  facilities"  shall  be  afforded  under  dissimilar  circumstances 
and  conditions.  Moreover,  the  direction  "to  affoi'd  equal  facilities 
for  an  interchange  of  traffic  "  is  controlled  and  limited  by  the  proviso 
that  this  clause  "shall  not  be  construed  as  requiring  a  carrier  to  give 
the  use  of  its  tracks  or  terminal  facilities  to  another  carrier."  Ken- 
tucky &  I.  Bridge  Co.  r.  Louisville  &  N.  R.  Co.,  37  Fed.  571;  Ore- 
gon Short  Line  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.,  51  Fed. 
465,  473.  In  the  second  place,  it  has  been  held  that  neither  by  the 
common  law  nor  by  the  interstate  commerce  law  have  the  national 
courts  been  vested  with  jurisdiction  to  compel  interstate  carriers  to 
enter  into  arrangements  or  agreements  with  each  other  for  the  through 
billing  of  freight,  and  for  joint  through  rates.  Agreements  of  this 
nature,  it  is  said,  under  existing  laws,  depend  upon  the  voluntary 
action  of  the  parties,  and  cannot  be  enforced  by  judicial  proceedings 
without  additional  legislation.  Little  Rock  &  M.  R.  Co.  v.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R.  1,  16,  17; 
Little  Rock  &  M.  R.  Co.  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  41  Fed. 
559,  and  cases  there  cited  by  Judge  Caldwell.  Furthermore,  it  has 
been  ruled  by  Mr.  Justice  Field  in  the  case  of  the  Oregon  Short  Line 
&  U.  N.  Ry.  Co.  V.  Northern  Pac.  R.  Co.,  51  Fed.  465,  474,  that  the 
third  section  of  the  Interstate  Commerce  Act  does  not  require  an 
interstate  carrier  to  receive  freight  in  the  cars  in  which  it  is  tendered 
by  a  connecting  carrier,  and  to  transport  it  in  such  cars,  paj'ing  a 
mileage  rate  thereon,  when  it  has  cars  of  its  own  that  are  available 
for  the  service,  and  the  freight  will  not  be  injured  by  transfer.  It 
should  be  remarked  in  this  connection  that  the  bills  on  file  in  the 
present  cases,  as  well  as  the  petitions  in  the  law  cases,  fail  to  dis- 
close whether  the  offending  companies  have  refused  to  receive  freight 
in  the  cars  in  which  it  was  tendered  to  them,  even  when  it  would 
injure  the  freight  to  transfer  it,  or  when  they  had  no  cars  of  their 
own  that  were  immediately  available  to  forward  it  to  its  destination. 
Neither  do  the  bills  or  the  petitions  disclose  whether,  in  tendering 
freight  in  cars  to  be  forwarded,  the  complainant  company  demanded 
the  payment  of  the  usual  wheelage  on  the  cars,  or  tendered  the  use  of 
the  same  free,  for  the  purpose  of  forwarding  the  freight  to  its  desti- 
nation. The  allegations  of  a  refusal  to  receive  freight  in  cars  are 
exceedingly  general,  and  convey  no  information  on  either  of  the 
points  last  mentioned. 

As  we  have  before  remarked,  the  several  propositions  above  stated 
do  not  seem  to  be  seriously  questioned.  It  is  urged,  however,  in 
substance,  that  although  the  court  may  be  powerless  to  make  and 


230      LITTLE  EOCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

enforce  agreements  between  curriers  for  through  billing  and  through' 
rating,  and  for  the  use  of  each  other's  cars,  tracks,  and  terminal 
facilities,  yet  that  when  a  carrier,  of  its  own  volition,  enters  into  an 
agreement  of  that  nature  with  another  connecting  carrier,  the  law 
commands  it  to  extend  "  equal  facilities "  to  all  other  connecting 
carriers,  if  the  physical  connection  is  made  at  or  about  the  same 
place,  and  the  physical  facilities  for  an  interchange  of  traffic  are  the 
same,  and  that  this  latter  duty  the  courts  may  and  should  enforce. 
It  will  be  observed  that  the  proposition  contended  for,  if  sound,  will 
enable  the  courts  to  do  indirectly  what  it  is  conceded  they  cannot  do 
directly.  It  authorizes  them  to  put  in  force  between  two  carriers  an 
arrangement  for  an  interchange  of  traffic  that  may  be  of  great  finan- 
cial importance  to  both,  which  could  neither  be  established  nor  en- 
forced by  judicial  decree,  except  for  the  fact  that  one  of  the  parties 
had  previously  seen  fit  to  make  a  similar  arrangement  with  some 
other  connecting  carrier^  It  may  be,  also,  that  the  arrangement  thus 
forced  upon  the  carrier  would  be  one  in  which  the  public  at  large 
have  no  particular  concern,  because  the  equal  facilities  demanded  by 
the  complainant  carrier  would  be  of  no  material  advantage  to  the 
general  public,  and  would  only  be  a  benefit  to  the  complainant. 

Another  necessary  result  of  the  doctrine  contended  for  is  that  it 
deprives  railway  carriers,  in  a  great  measure,  of  the  management  and 
control  of  their  own  propei'ty,  by  destroying  their  right  to  determine 
for  themselves  what  contracts  and  traffic  arrangements  with  connect- 
ing carriers  are  desirable  and  what  are  undesirable.  There  ought  to 
be  a  clear  authority  found  in  the  statute  for  depriving  a  carrier  of 
this  important  right  before  the  authority  is  exercised,  for,  when 
questions  of  that  nature  have  to  be  solved,  a  great  variety  of  com- 
plex considerations  will  present  themselves,  some  of  which  can 
neither  be  foreseen  nor  stated.  A  railroad  having  equal  facilities  at 
a  given  point  for  forming  a  physical  connection  with  a  number  of 
connecting  carriers  might  find  it  exceedingly  beneficial  to  enter  into 
an  arrangement  with  one  of  them,  having  a  long  line  and  important 
connections,  for  through  billing  and  rating,  and  for  the  use  of  each 
other's  cars  and  terminal  facilities,  while  it  would  find  it  exceedingly 
undesirable  and  unprofitable  to  enter  into  a  similar  arrangement  with 
a  shorter  road,  which  could  offer  nothing  in  return.  Or  the  case 
might  be  exactly  the  reverse.  The  shorter,  and  at  the  time  the  less 
important  road,  might  be  able  to  present  sound  business  reasons 
which  would  make  an  arrangement  with  it,  of  the  kind  above  indi- 
cated, more  desirable  than  with  the  longer  line.  Furthermore,  if  it 
be  the  law  that  an  arrangement  for  through  billing  and  rating  with 
one  carrier  necessitates  a  like  arrangement  with  others,  this  might 
be  a  controlling  influence  in  determining  a  railway  company  to  refuse 
to  enter  into  such  an  arrangement  with  any  connecting  carrier.  In 
view  of  these  considerations,  we  are  unable  to  adopt  a  construction 
of  the  Interstate  Commerce  Act  which  will  practically  compel  a  car- 


LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R.      231 

rier,  when  it  enters  iuto  au  arraugemeut  with  one  carrier  for  through 
billing  and  rating  and  for  the  use  of  its  tracks  and  terminals,  to 
make  the  same  arrangement  with  all  other  connecting  carriers,  if  the 
physical  facilities  for  an  interchange  of  trafllc  are  the  same,  and  to 
do  this  without  reference  to  the  question  whether  the  enforced 
arrangement  is  or  is  not  of  any  material  advantage  to  the  public. 

In  two  of  the  cases  heretofore  cited  (Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  and  Oregon  Short  Line  &  U.  N.  Ky.  Co.  v. 
Northern  Pac.  R.  Co.),  it  was  held  that  the  charge  of  undue  or  unrea- 
sonable discrimination  cannot  be  predicated  on  the  fact  that  a  rail- 
road company  allows  one  connecting  carrier  to  make  a  certain  use  of 
its  tracks  or  terminals,  which  it  does  not  concede  to  another.  This 
conclusion  was  reached  as  the  necessary  result  of  the  final  clause  of 
the  third  section  of  the  Interstate  Commerce  Law,  above  quoted,  to 
the  effect  that  the  second  paragraph  of  the  third  section  shall  not  be 
so  construed  as  to  require  a  carrier  to  give  the  use  of  its  tracks  or 
terminals  to  another  company.  Railroads  are  thus  left  by  the  com- 
merce act  to  exercise  practically  as  full  control  over  their  tracks  and 
terminals  with  reference  to  other  carriers  as  they  exercised  at  com- 
mon law.  The  language  of  Mr.  Justice  Field  in  that  behalf  was 
as  follows:  — 

"  It  follows  from  this  .  .  .  that  a  common  carrier  is  left  free  to 
enter  into  arrangements  for  the  use  of  its  tracks  or  terminal  facili- 
ties, with  one  or  more  connecting  lines,  without  subjecting  itself  to 
the  charge  of  giving  undue  or  unreasonable  preferences  or  advan- 
tages to  such  lines,  or  of  unlawfully  discriminating  against  other  car- 
riers. In  making  arrangements  for  such  use  by  other  companies,  a 
common  carrier  will  be  governed  by  considerations  of  what  is  best 
for  its  own  interests.  The  act  does  not  purport  to  divest  the  railway 
carrier  of  its  exclusive  right  to  control  its  own  affairs,  except  in  the 
specific  particulars  indicated."     51  Fed.  474,  475. 

Furthermore,  it  is  the  settled  construction  of  the  act,  as  we  have 
before  remarked,  that  it  does  not  make  it  obligatory  upon  connecting 
carriers  to  enter  into  tratlic  arrangements  for  through  billing  and  rat- 
ing either  as  to  passenger  or  freight  traffic.  This  conclusion  has 
been  reached  by  all  of  the  tribunals  who  have  had  occasion  to  con- 
sider the  subject,  and  it  is  based  on  the  fact  that,  in  enacting  the 
commerce  act.  Congress  did  not  see  fit  to  adopt  that  provision  of  the 
English  Railway  and  Canal  Traffic  Act,  passed  in  1873,  which  ex- 
pressly empowered  the  English  commissioners  to  compel  connecting 
carriers  to  put  in  force  arrangements  for  through  billing  and  through 
rating  when  they  deemed  it  to  the  interest  of  the  public  that  such 
arrangements  should  be  made.  Little  Rock  &  M.  R.  Co.  v.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R.,  1,  9,  10; 
Kentucky  &  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  567v 
630,  631.  See  also  the  second  annual  report  of  the  Interstate  Com- 
merce Commission  (2  Interst.  Commerce  Com.  R.,  510,  511).     In  the 


232      LITTLE  ROCK  &  MEMPHIS  E.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

light  of  these  adjudications,  we  are  compelled  to  conclude  that,  if  the 
charge  of  an  unreasonable  discrimination  cannot  be  successfully 
predicated  on  the  ground  that  a  railway  company  makes  an  arrange- 
ment with  one  connecting  carrier  for  the  use  of  its  tracks  and  termi- 
nals, which  it  refuses  to  make  with  another  although  the  physical 
facilities  for  an  interchange  of  traffic  are  the  same,  then  the  charge 
of  discrimination  cannot  be  predicated  on  the  ground  that  it  makes 
an  arrangement  for  through  billing  and  rating  with  one  carrier,  and 
does  not  make  it  with  another.  The  Interstate  Commerce  Act  does 
not,  it  seems,  at  present,  make  it  obligatory  on  carriers  to  make 
arrangements  of  either  sort,  and  does  not  give  the  commission  power 
to  compel  such  arrangements,  but  leaves  connecting  carriers,  as  at 
common  law,  to  determine  for  themselves  when  such  arrangements 
are  desirable,  and  when  undesirable.  Moreover,  arrangements  for 
through  billing  and  rating  will,  as  a  general  rule,  necessarily  involve 
an  agreement  for  the  use,  to  some  extent,  of  each  other's  terminals 
and  tracks;  and,  by  the  express  language  of  the  statute,  such  use 
cannot  be  enforced  without  the  consent  of  the  owner.  We  are  un- 
willing, therefore,  as  the  law  now  stands,  to  compel  the  defendant 
companies  to  afford  the  facilities  which  the  complainant  demands. 
As  was  said  by  Mr.  Justice  Jackson,  then  Circuit  Judge,  in  the  case 
to  which  we  have  already  referred: — ■ 

"  The  law  should  be  as  liberally  construed  in  favor  of  commerce 
among  the  States  as  its  language  will  permit;  but,  when  complaint  is 
made  or  relief  is  sought  solely  or  mainly  in  the  interest  of  the  com- 
mou  carriers  engaged  in  the  transportation  of  such  commerce,  the  act 
complained  of  or  the  right  asserted  should  not  rest  upon  any  doubt- 
ful construction,  but  should  clearly  appear  to  have  been  forbidden  or 
conferred." 

We  are  also  forced  to  conclude  that  if  the  public  interest  requires 
that  interstate  carriers  sliall  be  compelled  to  put  in  force  ari-ange- 
ments  for  through  billing  and  rating,  and  for  the  establishment  of 
joint  through  lines,  the  statute  should  be  made  more  explicit,  and 
that  the  commission  should  be  empowered  to  prescribe  the  terms  of 
such  arrangements  upon  a  comprehensive  view  of  the  circumstances 
of  each  particular  case. 

Some  allusion  was  made  in  the  argument  to  a  provision  found  in 
the  constitution  of  the  State  of  Ai-kansas  (article  17,  §  1),  as  hav- 
ing some  bearing  on  the  questions  discussed  in  these  cases;  but  as 
the  bills  and  petitions  filed  are  plainly  founded  on  the  Interstate 
Jommerce  Law,  and  thus  involve  a  federal  question  arising  under 
that  act,  and  as  there  is  no  jurisdiction  arising  from  diverse  citizen- 
ship, we  have  not  felt  called  upon  to  consider  or  decide  the  proposi- 
tion founded  upon  the  constitution  of  the  State.  In  view  of  what 
has  been  said,  the  several  decrees  and  judgments  are  hereby  affirmed. 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  li.  V.  INTERSTATE  COMMERCE  COM.      233 

CINCINNATI,    NEW   ORLEANS,    &   TEXAS   PACIFIC   RAIL- 
AV^AY   V.    INTERSTATE   COMMERCE    COMMISSION. 

Supreme  Court  of  the  United  States,  la'JG. 

[162  U.  S.  184.] 

Mr.  Justice  Siiiras  delivered  the  opinion  of  the  court. 

The  investigation  before  the  Interstate  Commerce  Commission 
resulted  in  an  order  in  the  following  terms:  — 

"  It  is  ordered  and  adjudged  that  the  defendants,  the  Cincinnati, 
New  Orleans,  &  Texas  Pacific  Railway  Company,  the  Western  & 
Atlantic  Railroad  Company,  and  the  Georgia  Railroad  Company  do, 
upon  and  after  the  20th  day  of  July,  1891,  wholly  cease  and  desist 
from  charging  or  receiving  any  greater  compensation,  in  the  aggre- 
gate, for  the  transportation  in  less  than  car  loads  of  buggies,  car- 
riages, and  other  articles  classified  by  them  as  freight  of  first  class, 
for  the  shorter  distance  over  the  line  formed  by  their  several  rail- 
roads fi'om  Cincinnati,  in  the  State  of  Ohio,  to  Social  Circle,  in  the 
State  of  Georgia,  than  tiiey  charge  or  receive  for  the  transportation 
of  said  articles  in  less  than  car  loads  for  the  longer  distance  over  the 
same  line  from  Cincinnati  aforesaid  to  Augusta,  in  the  State  of 
Georgia,  and  that  the  said  defendants,  the  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  Compan}',  do  also,  from  and  after  the  20th 
day  of  July,  1891,  wholly  cease  and  desist  from  charging  or  receiv- 
ing any  greater  aggregate  compensation  for  the  transportation  of 
buggies,  carriages,  and  other  first-class  articles,  in  less  than  car 
loads,  from  Cincinnati  aforesaid  to  Atlanta,  in  the  State  of  Georgia, 
than  one  dollar  per  hundred  pounds." 

The  decree  of  the  Circuit  Court  of  Appeals,  omitting  unimportant 
details,   was  as  follows :  — 

"  It  is  ordered,  adjudged,  and  decreed  .  .  .  that  this  cause  be 
remanded  to  the  Circuit  Court,  with  instructions  to  enter  a  decree  in 
favor  of  the  complainant,  the  Interstate  Commerce  Commission,  and 
against  the  defendants,  the  Cincinnati,  New  Orleans,  &  Texas  Pa- 
cific Railway  Company,  the  Western  &  Atlantic  Railroad  Company, 
and  the  Georgia  Railroad  Company,  commanding  and  restraining  the 
said  defendants,  their  otHcers,  servants,  and  attorneys,  to  cease  and 
desist  from  making  any  greater  charge,  in  the  aggregate,  on  buggies, 
carriages,  and  on  all  other  freight  of  the  first  class  carried  in  less 
than  car  loads  from  Cincinnati  to  Social  Circle,  than  they  charge  on 
such  freight  from  Cincinnati  to  Augusta;  that  they  so  desist  and 
refrain  within  five  days  after  the  entry  of  the  decree;  and  in  case 
they,  or  any  of  them,  shall  fail  to  obey  said  order,  condemning  the 
said  defendants,  and  each  of  them,  to  pay  one  hundred  dollars  a  day 
for  every  day  thereafter  they  shall  so  fail;  and  denying  the  relief 
prayed  for  in  relation  to  charges  on  like  freight  from  Cincinnati  to 
Atlanta." 


234     CIN.,  NEW  OKL.,  &  TEX.  PAC.  R,  V.  INTERSTATE  COMMERCE  COM. 

It  will  be  observed  that  in  its  said  decree  the  Circuit  Court  of 
Appeals  adopted  that  portion  of  the  order  of  the  commission  which 
commanded  the  defendants  to  make  no  greater  charge  on  freight  car- 
ried to  Social  Circle  than  on  like  freight  carried  to  Augusta,  and 
disapproved  and  annulled  that  portion  which  commanded  the  Cin- 
cinnati, New  Orleans,  &  Texas  Pacific  Railway  Company  and  the 
Western  &  Atlantic  Railroad  Company  to  desist  from  charging  for 
the  transportation  of  freight  of  like  character  from  Cincinnati  to 
Atlanta  more  than  $1  per  100  pounds. 

The  railroad  companies,  in  their  appeal,  complain  of  the  decree  of 
the  Circuit  Court  of  Appeals  in  so  far  as  it  affirmed  that  portion  of 
the  order  of  the  commission  which  affected  the  rates  charged  to 
Social  Circle.  The  commission,  in  its  appeal,  complains  of  the  de- 
cree, in  that  it  denies  the  relief  prayed  for  in  relation  to  charges  on 
freight  from  Cincinnati  to  Atlanta. 

Tlie  first  question  that  we  have  to  consider  is  whether  the  defend- 
ants, in  transporting  property  from  Cincinnati  to  Social  Circle,  are 
engaged  in  such  transportation  "  under  a  common  control,  manage- 
ment, or  arrangement  for  a  continuous  carriage  or  shipment,"  within 
the  meaning  of  that  language,  as  used  in  the  act  to  regulate 
commerce. 

We  do  not  understand  the  defendants  to  contend  that  the  arrange- 
ment whereby  the}'  carr}'  commodities  from  Cincinnati  to  Atlanta  and 
to  Augusta  at  through  rates  which  differ  in  the  aggregate  from  the  aggre- 
gate of  the  local  rates  between  the  same  points,  and  which  through  rates 
are  apportioned  between  them  in  such  a  way  that  each  receives  a  less 
sum  than  their  respective  local  rates,  does  not  bring  them  within  the 
provisions  of  the  statute.  What  they  do  claim  is  that,  as  the  charge 
to  Social  Circle,  being  $1.37  per  hundred  pounds,  is  made  up  of  a  joint 
rate  between  Cincinnati  and  Atlanta,  amounting  to  $1.07  per  hundred 
pounds,  and  30  cents  between  Atlanta  and  Social  Circle,  and  as  the  $1.07 
for  carrying  the  goods  to  Atlanta  is  divided  between  the  Cincinnati,  New 
Orleans,  and  Texas  Pacific  and  the  AVestern  and  Atlantic,  75-^^^  cents  to 
the  former  and  31  ^^  cents  to  the  latter,  and  the  remaining  30  cents,  being 
the  amount  of  the  regular  local  rate,  goes  to  the  Georgia  compan}', 
such  a  method  of  carrying  freight  from  Cincinnati  to  Social  Circle  and 
of  apportioning  the  mone}-  earned,  is  not  a  transportation  of  property 
between  those  points  "under  a  common  control,  management,  or  ar- 
rangement for  a  continuous  carriage  or  shipment." 

Put  in  another  way,  the  argument  is  that,  as  the  Georgia  Railroad 
Company  is  a  corporation  of  the  State  of  Georgia,  and  as  its  road 
lies  wholly  within  that  State,  and  as  it  exacts  and  receives  its  regular 
local  rate  for  the  transportation  to  Social  Circle,  such  company  is 
not,  as  to  freight  so  carried,  within  the  scope  of  the  act  of  Congress. 

It  is,  no  doubt,  true  that,  under  the  very  terms  of  the  act,  its  pro- 
visions do  not  apply  to  the  transportation  of  passengers  or  property,  or 
to  the  receiving,  delivering,  storage,  or  handling  of  property  wholly 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM.      2oo 

within  one  State,  not  shipped  to  or  from  a  foreign  country  from  or  to 
any  State  or  Territory. 

In  the  answer  filed  by  the  so-called  "  Georgia  Railroad  Company" 
in  the  proceedings  before  the  commission,  there  was  the  following 
allegation:  "  This  respondent  says  that  while  no  arrangement  exists 
for  a  through  bill  of  lading  from  Cincinnati  to  Social  Circle,  as  a 
matter  of  fact  the  shipment  from  Cincinnati  to  Social  Circle  by  the 
petitioner  was  made  on  a  through  bill  of  lading,  the  rate  of  which 
was  fixed  by  adding  this  respondent's  local  rate  from  Atlanta  to 
Social  Circle  to  the  through  rate  from  Cincinnati  to  Atlanta." 

The  answer  of  the  Louisville  &  Nashville  Railroad  Company  and 
Central  Railroad  &  Banking  Company  of  Georgia,  which  companies, 
as  operating  the  Georgia  railroads,  were  sued  by  the  name  of  the 
''  Georgia  Railroad  Company,"  in  the  Circuit  Court  of  the  United 
States,  contained  the  following  statement:  — 

"  So  far  as  these  respondents  are  concerned,  they  will  state  that 
on  July  3,  18D1,  E.  R.  Uorsey,  general  freight  agent  of  said  Georgia 
Railroad  Company,  issued  a  circular  to  its  connections,  earnestly 
requesting  them  that  thereafter,  in  issuing  bills  of  lading  to  local 
stations  on  the  Georgia  Railroad,  no  rates  be  inserted  east  of  At- 
lanta, except  to  Athens,  Gainesville,  Washington,  Milledgeville, 
Augusta,  or  points  beyond.  Neither  before  nor  since  the  date  of 
said  circular  have  these  respondents,  operating  said  Georgia  Rail- 
road, been  in  any  way  parties  to  such  through  rates,  if  any,  as  may 
have  been  quoted,  from  Cincinnati  or  other  Western  points  to  any  of 
the  strictly  local  stations  on  said  Georgia  Railroad.  The  stations 
excepted  in  said  circular  are  not  strictly  local  stations.  Both  be- 
fore and  since  the  date  of  said  circular  respondents  have  received  at 
Atlanta  east-bound  freight  destined  to  strictly  local  stations  on  the 
Georgia  Railroad,  and  have  charged  full  local  rates  to  such  stations, 
said  rates  being  such  as  they  were  authorized  to  charge  by  the 
Georgia  Railroad  commission.  Said  rates  are  reasonably  low,  and 
are  charged  to  all  persons  alike,  without  discrimination." 

Upon  this  part  of  the  case  the  conclusion  of  the  Circuit  Court  was 
that  the  traffic  from  Cincinnati  to  Social  Circle,  in  issue  as  to  the 
Georgia  Railroad  Company,  was  local,  and  that  that  compan}^  was 
not,  on  the  facts  presented,  made  a  party  to  a  joint  or  common 
arrangement  such  as  make  the  traffic  to  Social  Circle  subject  to  the 
control  of  the  Interstate  Commerce  Commission. 

We  are  unable  to  accept  this  conclusion.  It  may  be  true  that  the 
Georgia  Railroad  Company,  as  a  corporation  of  the  State  of  Georgia, 
and  whose  entire  road  is  witliin  that  State,  may  not  be  legally  com- 
pelled to  submit  itself  to  the  provisions  of  the  act  of  Congress,  even 
when  carrying,  between  points  in  Georgia,  freight  that  has  been 
brought  from  another  State.  It  may  be  that  if,  in  the  present  case, 
the  goods  of  the  James  &  ]Mayer  Buggy  Company  had  reached  At- 
lanta, and  there  and  then,   for  the  first  time,  and  independently  of 


236     CIN.,  NEW  ORL.,  &  TEX.  PAG.  R.  V.  INTERSTATE  COMMERCE  COM. 

any  existing  arraugement  with  the  railroad  companies  that  had  trans- 
ported them  thither,  the  Georgia  Railroad  Company  was  asked  to 
transport  them,  whether  to  Augusta  or  to  Social  Circle,  that  com- 
pany could  undertake  such  transportation  free  from  the  control  of 
any  supervision  except  that  of  the  State  of  Georgia.  But  when  the 
Georgia  Railroad  Company  enters  into  the  carriage  of  foreign  freight, 
by  agreeing  to  receive  the  goods  by  virtue  of  foreign  through  bills  of 
lading,  and  to  participate  in  through  rates  and  charges,  it  thereby 
becomes  part  of  a  continuous  line,  not  made  by  a  consolidation  with 
the  foreign  companies,  but  made  by  an  arrangement  for  the  continu- 
ous carriage  or  shipment  from  one  State  to  another,  and  thus  becomes 
amenable  to  the  federal  act,  in  respect  to  such  interstate  commerce. 
We  do  not  perceive  that  the  Georgia  Railroad  Company  escaped  from 
the  supervision  of  the  commission  by  requesting  the  foreign  com- 
panies not  to  name  or  fix  any  rates  for  that  part  of  the  transporta- 
tion which  took  place  in  the  State  of  Georgia  when  the  goods  were 
shipped  to  local  points  on  its  road.  It  still  left  its  arrangement  to 
stand  with  respect  to  its  terminus  at  Augusta  and  to  other  desig- 
nated points.  Having  elected  to  enter  into  the  carriage  of  interstate 
freights,  and  thus  subjected  itself  to  the  control  of  the  commission, 
it  would  not  be  competent  for  the  company  to  limit  that  control,  in 
respect  to  foreign  traffic,  to  certain  points  on  its  road,  and  exclude 
other  points. 

The  Circuit  Court  sought  to  fortify  its  position  in  this  regard  by 
citing  the  opinion  of  Mr.  Justice  Brewer  in  the  case  of  Chicago  & 
Northwestern  Railroad  v.  Osborne,  10  U.  S.  App.  430,  when  that 
case  was  before  the  United  States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit.  It  is  quite  true  that  the  opinion  was  expressed 
that  a  railroad  company  incorporated  by  and  doing  business  wholly 
within  one  State  cannot  be  compelled  to  agree  to  a  common  control, 
management,  or  arrangement  with  connecting  companies,  and  thus  be 
deprived  of  its  rights  and  powers  as  to  rates  on  its  own  road.  It 
was  also  said  that  it  did  not  follow  that,  even  if  such  a  State  corpo- 
ration did  agree  to  form  a  continuous  line  for  carrying  foreign 
freight  at  a  through  rate,  it  was  thereby  prevented  from  charging 
its  ordinary  local  rates  for  domestic  traffic  originating  within  the 
State. 

Thus  understood,  there  is  nothing  in  that  case  which  we  need  dis- 
agree with,  in  disapproving  the  Circuit  Coui't's  view  in  the  present 
case.  All  we  wish  to  be  understood  to  hold  is  that  when  goods  are 
shipped  under  a  through  bill  of  lading  from  a  point  in  one  State  to  a 
point  in  another,  are  received  in  transit  by  a  State  common  carrier, 
under  a  conventional  division  of  the  charges,  such  carrier  must  be 
deemed  to  have  subjected  its  road  to  an  arrangement  for  a  continuous 
carriage  or  shipment,  within  the  meaning  of  the  act  to  regulate  com- 
merce. When  we  speak  of  a  "  through  bill  of  lading,"  we  are  refer- 
ring to  the  usual  method  in  use  by  connecting  companies,  and  must 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  K.  V.  INTERSTATE    COMMERCE  COM.     237 

not  be  understood  to  imply  that  a  common  control,  management,  or 
arrangement  might  not  be  otherwise  manifested. 

Subject,  then,  as  we  hold  the  Georgia  Railroad  Company  is,  under 
the  facts  found,  to  the  provisions  of  the  act  to  regulate  conimerce,  in 
respect  to  its  interstate  freight,  it  follows,  as  we  think,  that  it  was 
within  the  jurisdiction  of  the  commission  to  consider  whether  the 
said  company,  in  charging  a  highe?  rate  for  a  shorter  than  for  a 
longer  dist:uice  over  the  same  line,  in  the  same  direction,  the  shorter 
being  incbuled  within  the  longer  distance,  was  or  was  not  transport- 
ing property,  in  transit  between  States,  under  "  substantially  similar 
circumstances  and  conditions." 

We  do  not  say  that  under  no  circumstances  and  conditions  Avould 
it  be  lawful,  when  engaged  in  the  transportation  of  foreign  freight, 
for  a  carrier  to  charge  more  for  a  shorter  than  a  longer  distance  on 
its  own  line;  but  it  is  for  the  tribunal  appointed  to  enforce  the  pro- 
visions of  the  statute,  whether  the  commission  or  the  court,  to  con- 
sider whether  the  existing  circumstances  and  conditions  were  or  were 
not  substantially  similar. 

It  has  been  forcibly  argued  that  in  the  present  case  the  commission 
did  not  give  due  weight  to  the  facts  that  tended  to  show  that  the  cir- 
cumstances and  conditions  were  so  dissimilar  as  to  justify  the  rates 
charged.  But  the  question  was  one  of  fact,  peculiarly  wathin  the 
province  of  the  commission,  whose  conclusions  have  been  accepted 
and  approved  by  the  Circuit  Court  of  Appeals,  and  we  find  nothing 
in  the  record  to  make  it  our  duty  to  draw  a  different  conclusion. 

We  understand  the  record  as  disclosing  that  the  commission,  in 
view  of  the  circumstances  and  conditions  in  which  the  defendants 
were  operating,  did  not  disturb  the  rates  agreed  upon,  whereby  the 
same  charge  was  made  to  Augusta  as  to  Atlanta, — a  less  distant 
point.  Some  observations  made  by  the  commission,  in  its  report, 
on  the  nature  of  the  circumstances  and  conditions  which  would  jus- 
tify a  greater  charge  for  the  shorter  distance,  gave  occasion  for  an 
interesting  discussion  by  the  respective  counsel.  But  it  is  not  neces- 
sary for  us,  in  the  present  case,  to  express  any  opinion  on  a  subject 
so  full  of  difficulty. 

These  views  lead  to  an  affirmance  of  the  decree  of  the  Circuit 
Court  of  Appeals,  in  so  far  as  the  appeal  of  the  defendant  comjianies 
is  concerned,  and  we  are  brought  to  a  consideration  of  the  appeal  by 
the  Interstate  Commerce  Commission. 

That  appeal  presents  the  question  whether  the  Circuit  Court  of 
Appeals  erred  in  its  holding  in  respect  to  the  action  of  the  Interstate 
Commerce  Commission,  in  fixing  a  maximum  rate  of  charges  for  the 
transportation  of  freight  of  the  first  class  in  less  than  car  loads  from 
Cincinnati  to  Atlanta. 

This  question  may  be  regarded  as  twofold,  and  is  so  presented  in 
the  assignment  of  error  filed  on  behalf  of  the  commission,  namely: 
Did  the  court  err  in  not  holding  that  in  point  of  law  the  Interstate 


238     CIN.,  NEW  ORL.,  &  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM. 

Commerce  Commission  btul  power  to  fix  a  maximum  rate?  and,  if 
siieii  power  existed,  did  tlie  court  err  in  not  holding  that  the  evi- 
dence justified  the  rate  fixed  by  the  commission,  and  not  decreeing 
accordingly  ? 

Jt  is  stated  hj  the  commission,  in  its  report,  that  "  the  only  testi- 
mony offered  or  heard  as  to  the  reasonableness  of  the  rate  to  Atlanta 
in  question  was  that  of  the  Vfce-Presideut  of  the  Cincinnati,  New 
Orleans,  &  Texas  Pacific  Company,  whose  deposition  was  taken  at 
the  instance  of  the  company,"  And  in  acting  upon  the  subject  the 
commission  say :  — 

"  This  statement  or  estimate  of  the  rate  from  Cincinnati  to  Atlanta 
($1.01  per  hundred  pounds  in  less  than  car  loads),  we  believe,  is  fully 
as  high  as  it  may  reasonably  be,  if  not  higher  than  it  should  be;  but, 
without  more  thorough  investigation  than  it  is  now  practicable  to 
make,  we  do  not  feel  justified  in  determining  upon  a  more  moderate 
rate  than  $1  per  hundred  pounds  of  first-class  freight  in  less  than  car 
loads.  The  rate  on  this  freight  from  Cincinnati  to  Birmingham, 
Alabama,  is  89  cents,  as  compared  with  $1.07  to  Atlanta,  the  dis- 
tances being  substantially  the  same.  There  is  apparently  nothing  in 
the  nature  and  character  of  the  service  to  justify  such  difference,  or 
in  fact  to  warrant  an}'  substantial  variance  in  the  Atlanta  and  Bir- 
mingham rate  from  Cincinnati." 

But  when  the  commission  filed  its  petition  in  the  Circuit  Court  of 
the  United  States,  seeking  to  enforce  compliance  with  the  rate  of  $1 
per  100  pounds,  as  fixed  by  the  commission,  the  railroad  companies, 
in  their  answers,  alleged  that  "  the  rate  charged  to  Atlanta,  namel}-, 
$1.07  per  hundred  pounds,  was  fixed  by  active  competition  between 
various  transportation  lines,  and  was  reasonably  low." 

Under  this  issue  evidence  was  taken,  and  we  learn  from  the  opin- 
ion of  the  Circuit  Court  that,  as  to  the  rate  to  Birmingham,  there  was 
evidence  before  the  court  which  evidently  was  not  before  the  com- 
mission, namely,  that  the  rate  from  Cincinnati  to  Birmingham,  which 
seems  previously  to  have  been  $1.08,  was  forced  down  to  89  cents  by 
the  building  of  the  Kansas  City,  Memphis,  &  Birmingham  Railroad, 
which  new  road  caused  the  establishment  of  a  rate  of  75  cents  from 
Memphis  to  Birmingham,  and,  by  reason  of  wa'ter  route  to  the  North- 
west, such  competition  was  brought  about  that  the  present  rate  of  89 
cents  from  Cincinnati  to  Birmingham  was  the  result. 

Without  stating  the  reasoning  of  the  Circuit  Court,  which  will  be 
found  in  the  report  of  the  case  in  64  Fed.  981,  the  conclusion  reached 
was  that  the  evidence  offered  in  that  court  was  sufficient  to  overcome 
Viwy  prima  facie  case  that  may  have  been  made  by  the  findings  of  the 
commission,  and  that  the  rate  complained  of  was  not  unreasonable. 

As  already  stated,  the  Circuit  Court  of  Appeals  adopted  the  views 
of  the  Circuit  Court  in  respect  to  the  reasonableness  of  the  rate 
charged  on  first-class  freight  carried  on  defendants'  line  from  Cin- 
cinnati to  Atlanta;   and,  as  both  courts  found  the  existing  rate  to 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  E.  V.  INTERSTATE  COMMERCE  COM.     239 

have  been  reasonable,  we  do  uot  feel  disposed  to  review  their  liuding 
oil  that  matter  of  fact. 

We  think  this  a  proper  occasion  to  express  disapproval  of  such  a 
method  of  procedure  on  the  part  of  the  railroad  companies  as  should 
lead  them  to  withhold  the  larger  part  of  their  evidence  from  the  com- 
mission, and  first  adduce  it  in  the  Circuit  Court.  The  commission  is 
an  administrative  board,  and  the  courts  are  only  to  be  resorted  to 
when  the  commission  prefers  to  enforce  the  provisions  of  the  statute 
by  a  direct  proceeding  in  the  court,  or  when  the  orders  of  the  com- 
mission have  been  disregarded.  The  theory  of  the  act  evidently  is, 
as  shown  by  the  provision,  that  the  findings  of  the  commission  shall 
be  regarded  as  i)i''uiia  facie  evidence,  that  the  facts  of  the  case  are  to 
be  disclosed  before  the  commission.  We  do  not  mean,  of  course, 
that  either  party,  in  a  trial  in  the  court,  is  to  be  restricted  to  the 
evidence  that  was  before  the  commission,  but  that  the  purposes  of  the 
act  call  for  a  full  incjuiry  by  the  commission  into  all  the  circumstances 
and  conditions  pertinent  to  the  questions  involved. 

Whether  Congress  intended  to  confer  upon  the  Interstate  Commerce 
Commission  the  power  to  itself  fix  rates  was  mooted  in  the  courts 
below,  and  is  discussed  in  the  briefs  of  counsel. 

We  do  not  find  any  provision  of  the  act  that  expressly,  or  by 
necessary  implication,  confers  such  a  power. 

It  is  argued  on  behalf  of  the  commission  that  the  power  to  pass 
upon  the  reasonableness  of  existing  rates  implies  a  right  to  prescribe 
rates.  This  is  not  necessarily  so.  The  reasonableness  of  the  rate, 
in  a  given  case,  depends  on  the  facts,  and  the  function  of  the  com- 
mission is  to  consider  these  facts  and  give  them  their  proper  weight. 
If  the  commission,  instead  of  withholding  judgment  in  such  a  matter 
until  an  issue  shall  be  made  and  the  facts  found,  itself  fixes  a  rate, 
that  rate  is  prejudged  by  the  commission  to  be  reasonable. 

We  prefer  to  adopt  the  view  expressed  by  the  late  Justice  Jackson, 
when  Circuit  Judge,  in  tlie  case  of  Interstate  Commerce  Commission 
V.  Baltimore  &  Ohio  Railroad  Co.,  43  Fed.  37,  and  whose  judgment 
was  affirmed  by  this  court,  145  U.  S.  263 :  — 

"  Subject  to  the  two  leading  prohibitions  that  their  charges  shall 
not  be  unjust  or  unreasonable,  and  that  they  shall  not  unjustly  dis- 
criminate, so  as  to  give  undue  preference  or  disadvantage  to  persons 
or  traffic  similarly  circumstanced,  the  act  to  regulate  commerce  leaves 
common  carriers  as  they  were  at  the  common  law,  —  free  to  make 
special  contracts  looking  to  the  increase  of  their  business,  to  classify 
their  traffic,  to  adjust  and  apportion  their  rates  so  as  to  meet  the 
necessities  of  commerce,  and  generally  to  manage  their  important 
interests  upon  the  same  principles  which  are  regarded  as  sound,  and 
adopted  in  other  trades  and  pursuits." 

The  decree  of  the  Circuit  Court  of  Appeals  is  affirmed. 


240  TEXAS   &   PACIFIC   K.   V.   INTEESTATE   COMMERCE    COM. 

TEXAS    &   PACIFIC   RAILWAY   v.    INTERSTATE 
COMMERCE   COMMISSION. 

Supreme  Court  of  the  United  States,   1896. 
[162  U.  S.  197.] 

The  object  of  the  bill  was  to  compel  the  defendant  company  to 
obey  an  order  of  the  Interstate  Commerce  Commission.^  .   .   . 

It  appears  by  the  bill  that,  on  March  23,  lb89,  the  commission, 
of  its  own  motion  and  without  a  hearing  of  the  parties  to  be  affected, 
had  made  a  certain  order  wherein,  among  other  things,  it  was  pro- 
vided as  follows :  — 

"  Imported  traffic  transported  to  any  place  in  the  United  States 
from  a  port  of  entry  or  place  of  reception,  whether  in  this  country  or 
in  an  adjacent  foreign  country,  is  required  to  be  taken  on  the  inland 
tariff  governing  other  freights."     2  Interst.  Commerce  Com.  R.  658. 

Subsequently  complaint  was  made  to  the  Interstate  Commerce 
Commission,  in  a  petition  filed  by  the  New  York  Board  of  Trade 
and  Transportation,  that  certain  railroad  companies  were  disregard- 
ing said  order,  .  .  .  among  them  the  Texas  &  Pacific  Railway  Com- 
pany, the  defendant  in  the  present  case.   .  .   . 

The  answer  of  the  Texas  &  Pacific  Railway  Company,  admitting 
that,  both  before  and  since  March  23,  1889,  it  had  carried  imported 
traffic  at  lower  rates  than  it  contemporaneously  charged  for  like  traffic 
originating  in  the  United  States,  justified  by  claiming  that  through 
shipments  from  a  foreign  country  to  the  interior  of  the  United  States 
differ  in  circumstances  and  conditions  from  shipments  originating  at 
the  American  seaboard  bound  for  the  same  interior  points,  and  that 
defendant  company  has  a  legal  right  to  accept  for  its  share  of  the 
through  rate  a  lower  sum  than  it  receives  for  domestic  shipment  to 
the  same  destination  from  the  point  at  which  the  imported  traffic 
enters  this  country. 

The  result  of  the  hearing  before  the  Interstate  Commerce  Commis- 
sion was,  so  far  as  ^  the  present  case  is  concerned,  that  the  commis- 
sion held  that  the  Texas  &  Pacific  Railway  Company  was  not  justified 
in  accepting,  as  its  share  of  a  through  rate  on  imported  traffic,  a  less 
charge  or  sum  than  it  charged  and  received  for  inland  traffic  between 
the  port  of  reception  and  the  point  of  delivery,  and  the  said  order  of 
January  29,  1891,  commanding  that  said  company  desist  from  dis- 
tinguishing in  its  charges  between  foreign  and  inland  traffic,  was 
mode.     4  Interst.   Commerce  Com.   R.   447. 

As  the  Texas  &  Pacific  Railway  Company  declined  to  observe  said 
order,  the  commission  filed  its  present  bill  against  said  company  in 
the  Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York. 

1  The  statement  of  facts  is  much  condensed,  and  part  of  the  opinion  is  omitted. — 
Ed. 


TEXAS    &   PACIFIC    R.    V.    INTERSTATE    COMMERCE   COM.  241 

Mr.  Justice  Siiiras  delivered  the  opinion  of  the  court. 

The  answer  of  the  Texiis  &  Pacific  Railway  Company  to  the  peti- 
tion of  the  New  York  Board  of  Trade  and  Transportation  before  the 
Interstate  Commerce  Commission,  and  the  answer  of  said  company 
to  the  petition  of  the  commission  filed  in  the  Circuit  Court,  allege: 
That  rates  for  the  transportation  of  commodities  from  Liverpool  and 
London,  p]ngland,  to  San  Francisco,  Cal.,  are  in  effect  fixed  and 
controlled  by  the  competition  of  sailing  vessels  for  the  entire  dis- 
tance; by  steamships  and  sailing  vessels  in  connection  wdth  railroads 
across  the  Isthmus  of  Panama;  by  steamships  and  sailing  vessels 
from  Europe  to  New  Orleans,  connecting  these,  under  through  ar- 
rangements with  the  Southern  Pacific  Company,  to  San  Francisco. 
That,  unless  the  defendant  company  charges  substantially  the  rates 
specified  in  its  answer,  it  would  be  prevented,  by  reason  of  the  com- 
petition aforeaaid,  from  engaging  in  the  carrying  and  transportation 
of  property  and  import  traffic  from  Liverpool  and  London  to  San 
Francisco,  and  would  lose  the  revenue  derived  by  it  therefrom,  which 
is  considerable,  and  important  and  valuable  to  said  compan}'.  That 
the  rates  charged  by  it  are  not  to  the  prejudice  or  disadvantage  of 
New  Orleans,  and  work  no  injury  to  that  community,  because,  if 
said  company  is  prevented  from  participating  in  said  traffic,  such 
traffic  would  move  via  the  other  routes  and  lines  aforesaid  without 
benefit  to  New  Orleans,  but,  on  the  contrary,  to  its  disadvantage. 
That  the  foreign  or  import  traffic  is  upon  orders  by  persons,  firms, 
and  corporations  in  San  Francisco  and  vicinity,  buying  direct  of  first 
hands  in  London,  Liverpool,  and  other  European  markets;  and,  if 
the  order  of  the  commission  should  be  carried  into  effect,  it  would 
not  result  in  discontinuance  of  that  practice  or  in  inducing  them  to 
buy  in  New  Orleans  in  any  event.  That  the  result  of  the  order  would 
be  to  injuriously  affect  the  defendant  company  in  the  carriage  of 
articles  of  foreign  imports  to  Memphis,  St.  Louis,  Kansas  City,  and 
other  Missouri  River  points.  That  by  such  order  the  defendant  com- 
pany would  be  prevented  from  competing  for  freight  to  important 
points  in  the  State  of  Texas  with  the  railroad  system  of  that  State, 
having  Galveston  as  a  receiving  port,  and  which  railroad  system  is 
not  subject  to  the  control  of  the  Interstate  Commerce  Commission. 
These  allegations  of  the  answer  were  not  traversed  or  denied  by 
the  commission,  but  are  confirmed  by  the  findings  of  the  commis- 
sion attached  as  an  exhibit  to  the  petition  in  the  case;  and  by  said 
findings  it  further  appears  that  the  proportion  the  Texas  &  Pacific 
Railway  receives  of  the  through  rate  is  remunerative;  that  the  pre- 
ponderance of  its  empty  cars  go  north  during  eight  months  of  the 
year,  and  if  something  can  be  obtained  to  load,  it  is  that  much 
found,  and  anything  is  regarded  as  remunerative  that  can  be  ob- 
tained to  put  in  its  cars  to  pay  mileage :  that  the  competition  which 
controls  the  making  of  rates  to  the  Pacific  coast  is  steamship  b}'  way 
of  the  Isthmus  and  in  cheap  heavy  goods  around  Cape  Horn;  that 

16 


2'42  TEXAS   &   PACIFIC    E.    V.   INTERSTATE    COMMEHCE    COM. 

the  competition  to  interior  points,  such  as  Missouri  River  points  and 
Denver,  is  from  the  trunk  lines  direct  from  the  Atlantic  seaboard; 
that  the  ships  engaged  in  carrying  to  San  Francisco  around  Cape 
Horn  are  almost  wholly  British  bottoms;  that  the  through  bill  of  lad- 
ing furnishes  a  collateral  for  the  transaction  of  business,  takes  from 
the  shipper  and  consignee  both  the  care  as  to  intermediate  charges, 
elevators,  wharves,  and  cost  of  handling,  and  puts  it  on  the  carrier, 
reduces  the  intermediate  charges,  very  much  facilitates  the  transac- 
tion of  business,  and  helps  to  swell  its  volume;  that  the  tendency  of 
the  through  bill  of  lading  is  to  eliminate  the  obstacles  between  the 
producer  and  consumer,  and  it  has  done  much  in  that  direction. 

These  and  other  uucontroverted  facts  that  appear  in  this  record 
would  seem  to  constitute  "  circumstances  and  conditions"  worthy  of 
consideration,  when  carriers  are  charged  with  being  guilty  of  unjust 
discrimination,  or  of  giving  unreasonable  and  undue  preference  or 
advantage  to  any  person  or  locality. 

But  we  understand  the  view  of  the  commission  to  have  been  that 
it  was  not  competent  for  the  commission  to  consider  such  facts;  that 
it  was  shut  up,  by  the  terms  of  the  act  of  Congress,  to  consider  only 
such  "  circumstances  and  conditions  "  as  pertained  to  the  articles  of 
traffic  after  they  had  reached  and  been  delivered  at  a  port  of  the 
United  States  or  Canada. 

It  is  proper  that  we  should  give  the  views  of  the  commission  in  its 
own  words :  — 

"  The  statute  has  provided  for  the  regulation  of  interstate  traffic 
by  interstate  carriers,  partly  by  rail,  and  partly  by  water,  or  all  rail, 
shipped  from  one  point  in  the  United  States  to  another  destination 
within  the  United  States,  or  from  a  point  of  shipment  in  the  United 
States  to  a  port  of  entry  within  the  United  States  or  an  adjacent 
foreign  country,  or  from  a  port  of  entry  either  within  the  United 
States  or  in  an  adjacent  foreign  country,  on  import  traffic  brought  to 
such  port  of  entry  from  a  foreign  port  of  shipment  and  destined  to  a 
place  within  the  United  States.  In  providin'g  for  this  regulation, 
the  statute  has  also  provided  for  the  methods  of  such  regulation  by 
publication  of  taritfs  of  rates  and  charges  at  points  where  the  freight 
is  received,  and  at  which  it  is  delivered,  and  also  for  taking  into 
consideration  the  circumstances  and  conditions  surrounding  the  trans- 
portation of  the  property.  The  statute  has  undertaken  no  such  regu- 
lation from  foreign  ports  of  shipment  to  ports  of  entry  either  within 
the  United  States  or  to  ports  of  entry  in  an  adjacent  foreign  country, 
and,  as  between  these  ports,  has  provided  for  no  publication  of 
tariffs  of  rates  and  charges,  but  has  left  it  to  the  unrestrained  com- 
petition of  ocean  carriers,  and  all  the  circumstances  and  conditions 
surrounding  it.  These  circumstances  and  conditions  are,  indeed, 
widely  difTerent,  in  many  respects,  from  the  circumstances  and  con- 
ditions surrounding  the  carriage  of  domestic  interstate  traffic  between 
the  States  of  the  American  Union  by  rail  carriers ;  but  as  the  regula- 


TEXAS   &   PACIFIC    R.    V.    INTERSTATE    COMMERCE   COM.  243 

tion  provided  for  by  the  act  to  regulate  commerce  does  not  undertake 
to  regulate  or  govern  them,  they  cannot  be  held  to  constitute  reasons, 
in  themselves,  why  imported  freight  brought  to  a  port  of  entry  of  the 
United  States  or  a  port  of  entry  of  an  adjacent  foreign  country,  des- 
tined to  a  place  within  the  United  States,  should  be  carried  at  a 
lower  rate  than  domestic  traffic  from  such  ports  of  entry,  repectivel}', 
to  the  places  of  destination,  in  the  United  States,  over  the  same  line 
and  in  the  same  direction.  To  hold  otherwise  would  be  for  the  com- 
mission to  create  exceptions  to  the  operation  of  the  statute  not  found 
in  the  statute,  and  no  other  power  but  Congress  can  create  such 
exception  in  the  exercise  of  legislative  authority. 

"  In  the  one  case  the  freight  is  transported  from  a  point  of  origin 
in  the  United  States  to  a  destination  within  the  United  States,  or 
port  of  transshipment,  if  it  be  intended  for  export,  upon  open  pub- 
lished rates,  which  must  be  reasonable  and  just,  not  unjustly  prefer- 
ential to  one  kind  of  traffic  over  another,  and  relatively  fair  and  just 
as  between  localities;  and  the  circumstances  and  conditions  sur- 
rounding and  involved  in  the  transportation  of  the  freight  are  in  a 
very  high  degree  material.  In  the  other  case,  the  freight  originates 
in  a  foreign  country,  its  carriage  is  commenced  from  a  foreign  port, 
it  is  carried  upon  rates  that  are  not  open  and  published,  but  are 
secret,  and  in  making  these  rates  it  is  wholly  immaterial  to  the 
parties  making  them  whether  they  are  reasonable  and  just  or  not, 
so  they  take  the  freight  and  beat  a  rival,  and  it  is  equally  imma- 
terial to  them  whether  they  unjustly  discriminate  against  surround- 
ing or  rival  localities  in  such  foreign  country  or  not.  Imported 
foreign  merchandise  has  all  the  benefit  and  advantage  of  rates  thus 
made  in  the  foreign  ports;  it  also  has  all  the  benefit  and  advantage 
of  the  low  rates  made  in  the  ocean  carriage,  arising  from  the 
peculiar  circumstances  and  conditions  under  which  that  is  done; 
but,  when  it  reaches  a  port  of  entry  of  the  United  States,  or  a 
port  of  entry  of  a  foreign  country  adjacent  to  the  United  States, 
in  either  event  upon  a  through  bill  of  lading,  destined  to  a  place  in 
the  United  States,  then  its  carriage  from  such  port  of  entry  to  its 
place  of  destination  in  the  United  States,  under  the  operation  of  the 
act  to  regulate  commerce,  must  be  under  the  inland  tariff  from  such 
port  of  entry  to  such  place  of  destination,  covering  other  like  kind 
of  traffic  in  the  elements  of  bulk,  weight,  value,  and  of  carriage; 
and  no  unjust  preference  must  be  given  to  it  in  carriage  or  facilities 
of  carriage  over  other  freight.  In  such  case,  all  the  circumstances 
and  conditions  that  have  surrounded  its  rates  and  carriage  from  tlie 
foreign  port  to  the  port  of  entry  have  had  their  full  weight  and 
operation,  and  in  its  carriage  from  the  port  of  entry  to  the  place  of 
its  destination  in  the  United  States.  The  mere  fact  that  it  is  foreign 
merchandise  thus  brought  from  a  foreign  port  is  not  a  circumstance 
or  condition,  under  the  operation  of  the  act  to  regulate  commerce, 
whicii  entitles  it  to  lower  rates,  or  any  other  preference  in  facilities 


244  TEXAS   &   TACIFIC    K.    V.    INTERSTATE    COMMERCE    COM. 

and  carriage,  over  home  merchandise,  or  other  traffic  of  a  like  kind, 
carried  by  the  inland  carrier,  from  the  port  of  entry  to  the  place  of 
destination  in  the  United  States,  for  the  same  distance,  and  over  the 
same  line.   .   •   . 

"  The  act  to  regulate  commerce  will  be  examined  in  vain  to  find 
any  intimation  that  there  sliall  be  any  difference  made  in  the  tolls, 
rates,  or  charges  for,  or  any  difference  in  the  treatment  of  home  and 
foreign  merchandise,  in  respect  to  the  same  or  similar  service  ren- 
dered in  the  transportation,  when  this  transportation  is  done  under 
the  operation  of  this  statute.  Certainly,  it  would  require  a  proviso 
or  exception,  plainly  ingrafted  upon  the  face  of  the  act  to  regulate 
commerce,  before  any  tribunal  charged  with  its  administration  would 
be  authorized  to  decide  or  hold  that  foreign  merchandise  was  entitled 
to  any  preference  in  tolls,  rates,  or  charges  made  for,  or  any  differ- 
ence in  its  treatment  for,  the  same  or  similar  service  as  against 
home  merchandise.  Foreign  and  home  merchandise,  therefore,  under 
the  operation  of  this  statute,  when  handled  and  transported  by  inter- 
state carriers,  engaged  in  carriage  in  the  United  States,  stand  exactly 
upon  the  same  basis  of  equality  as  to  tolls,  rates,  charges,  and  treat- 
ment for  similar  services  rendered. 

"  The  business  complained  of  in  this  proceeding  is  done  in  the 
shipment  of  foreign  merchandise  from  foreign  ports  through  ports  of 
entry  of  the  United  States,  or  through  ports  of  entry  in  a  foreign 
country  adjacent  to  the  United  States,  to  points  of  destination  in  the 
United  States,  upon  through  bills  of  lading."  4  Interst.  Commerce 
Com.  R.  512-516. 

It  is  obvious,  therefore,  that  the  commission,  in  formulating  the 
order  of  January  29,  1891,  acted  upon  that  view  of  the  meaning  of 
the  statute  which  is  expressed  in  the  foregoing  passages. 

We  have,  therefore,  to  deal  only  with  a  question  of  law,  and  that 
is,  ^yhat  is  the  true  construction,  in  respect  to  the  matters  involved 
in  the  present  controversy,  of  the  act  to  regulate  commerce  ?  If  the 
construction  put  upon  the  act  by  the  commission  was  right,  then  the 
order  was  lawful ;  otherwise,  it  was  not. 

Before  we  consider  the  phraseology  of  the  statute,  it  may  be  well 
to  advert  to  the  causes  which  induced  its  enactment.  They  chiefly 
grew  out  of  the  use  of  railroads  as  the  pi-iucipal  modern  instrumen- 
tality of  commerce.  While  shippers  of  merchandise  are  under  no 
legal  necessity  to  use  railroads,  they  are  so  practically.  The  demand 
for  speedy  and  prompt  movement  virtually  forbids  the  employment 
of  slow  and  old-fashioned  methods  of  transportation,  at  least  in  the 
case  of  the  more  valuable  articles  of  traffic.  At  the  same  time,  the 
immense  outlay  of  money  required  to  build  and  maintain  railroads, 
and  the  necessity  of  resorting,  in  securing  the  rights  of  way,  to  the 
power  of  eminent  domain,  in  effect  disable  individual  merchants  and 
shippers  from  themselves  providing  such  means  of  carriage.  From 
the  very  nature  of  the  case,  therefore,  railroads  are  monopolies,  and 


TEXAS    &    PACIFIC   R.    V.    INTERSTATE   COMMERCE    COM.  245 

the  evils  that  usually  accompany  monopolies  soon  began  to  show 
themselves,  and  were  the  cause  of  loud  complaints.  The  companies 
owning  the  railroads  were  charged,  and  sometimes  truthfully,  with 
making  unjust  discriminations,  between  shippers  and  localities, 
with  making  secret  agreements  with  some  to  ihe  detriment  of  otlier 
patrons,  and  with  making  pools  or  combinations  with  each  other, 
leading  to  oppression  of  entire  connnunities. 

Some  of  these  mischiefs  were  partially  remedied  by  s{)ecial  pro- 
visions inserted  in  the  charters  of  the  companies,  and  by  general 
enactments  by  the  several  States,  such  as  clauses  restricting  the 
rates  of  toll,  and  forbidding  railroad  companies  from  becoming  con- 
cerned in  the  sale  or  production  of  articles  carried,  and  from  making 
unjust  preferences.  Relief,  to  some  extent,  was  likewise  found  in 
the  action  of  the  courts  in  enforcing  the  principles  of  the  common 
law  applicable  to  common  carriers,  —  particularly  that  one  which 
requires  uniformity  of  treatment  in  like  conditions  of  service. 

As,  however,  the  powers  of  the  States  were  restricted  to  their  own 
territories,  and  did  not  enable  them  to  efficiently  control  the  manage- 
ment of  great  corporations,  whose  roads  extend  tlirough  the  entire 
country,  there  was  a  general  demand  that  Congress,  in  the  exercise 
of  its  plenary  power  over  the  subject  of  foreign  and  interstate  com- 
merce, should  deal  with  the  evils  complained  of  by  a  general  enact- 
ment, and  the  statute  in  question  was  the  result. 

The  scope  or  purpose  of  the  act  is,  as  declared  in  its  title,  to 
regulate  commerce.  It  would,  therefore,  in  advance  of  an  examina- 
tion of  the  text  of  the  act,  be  reasonable  to  anticipate  that  the  legis- 
lation would  cover,  oi;  have  regard  to,  the  entire  field  of  foreign  and 
interstate  commerce,  and  that  its  scheme  of  regulation  would  not  be 
restricted  to  a  partial  treatment  of  the  subject.  So,  too,  it  could  not 
be  readily  supposed  that  Congress  intended,  when  regulating  such 
commerce,  to  interfere  with  and  interrupt,  much  less  destroy,  sources 
of  trade  and  commerce  already  existing,  nor  to  overlook  the  property 
rights  of  those  who  had  invested  money  in  the  railroads  of  the 
country,  nor  to  disregard  the  interests  of  the  consumers,  to  furnish 
whom  with  merchandise  is  one  of  the  principal  objects  of  all  systems 
of  transportation. 

Addressing  ourselves  to  the  express  language  of  the  statute,  we 
find,  in  its  first  section,  that  the  carriers  that  are  declared  to  be  sub- 
ject to  the  act  are  those  "  engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad,  or  partly  by  railroad  and  partly  by 
water  when  both  are  used,  under  a  common  control,  management,  or 
arrangement,  for  a  continuous  carriage  or  shipment,  from  one  State 
or  Territory  of  the  United  States,  or  the  District  of  Columbia,  to 
any  other  State  or  Territory  of  the  United  States,  or  the  District  of 
Columbia,  or  from  any  place  in  the  United  States  to  an  adjacent  for- 
eign country,  or  from  any  place  in  the  United  States  through  a  foreign 
country  to  any  other  place  in  the  United  States,  and  also  to  the  trans- 


246  TEXAS   &   PACIFIC    K.    V.   INTERSTATE    COMMERCE    COM. 

portiition  iu  like  manner  of  property  shipped  from  any  place  in  the 
United  States  to  a  foreign  country  and  carried  from  such  place  to  a 
port  of  transshipment,  or  shipped  from  a  foreign  country  to  any  place 
iu  the  United  States  and  carried  to  such  place  from  a  port  of  entry 
either  in  the  United  States  or  an  adjacent  foreign  country." 

It  would  be  difficult  to  use  language  more  unmistakably  signifying 
that  Congress  had  in  view  the  whole  field  of  commerce  (excepting 
commerce  wholly  within  a  State),  as  well  that  between  the  States  and 
Territories  as  that  going  to  or  coming  from  foreign  countries. 

In  a  later  part  of  the  section  it  is  declared  that  "  the  term 
'  transportation  '  shall  include  all  instrumentalities  of  shipment  or 
carriage." 

Having  thus  included  in  its  scope  the  entire  commerce  of  the 
United  States,  foreign  and  interstate,  and  subjected  to  its  regula- 
tions all  carriers  engaged  in  the  transportation  of  passengers  or 
property,  by  whatever  instrumentalities  of  shipment  or  carriage,  the 
section  proceeds  to  declare  that  "  all  charges  made  for  any  service 
rendered  or  to  be  rendered  in  the  transportation  of  passengers  or 
property  as  aforesaid,  or  in  connection  therewith,  or  for  the  receiv- 
ing, delivering,  storage,  or  handling  of  such  property,  shall  be  rea- 
sonable and  just,  and  every  unjust  and  unreasonable  charge  for  such 
service  is  prohibited  and  declared  to  be  unlawful." 

The  significance  of  this  language  in  thus  extending  the  judgment 
of  the  tribunal  established  to  enforce  the  provisions  of  the  act  to  the 
entire  service  to  be  performed  by  carriers,  is  obvious. 

Proceeding  to  the  second  section,  we  learn  that  its  terms  forbid 
any  common  carrier,  subject  to  the  provisions  of  the  act,  from 
charging,  demanding,  collecting,  or  receiving  "  from  any  person  or 
persons  a  greater  or  less  compensation  for  any  service  rendered  or  to 
be  rendered,  in  the  transportation  of  passengers  or  property,  subject 
to  the  provisions  of  the  act,  than  it  charges,  demands,  collects,  or 
receives  from  any  other  person  or  persons  for  doing  for  him  or  them 
a  like  and  contemporaneous  service  in  the  transportation  of  a  like 
kind  of  traffic  under  substantially  similar  circumstances  and  condi- 
tions," and  declare  that  disregard  of  such  prohibition  shall  be  deemed 
"  unjust  discrimination,"  and  unlawful. 

Here,  again,  it  is  observable  that  this  section  contemplates  that 
there  shall  be  a  tribunal  capable  of  determining  whether,  in  given 
cases,  the  services  rendered  are''  like  and  contemporaneous,"  whether 
the  respective  traffic  is  of  a  "  like  kind,"  and  whether  the  transporta- 
tion is  under  "  substantially  similar  circumstances  and  conditions." 

The  third  section  makes  it  "  unlawful  for  any  common  carrier, 
subject  to  the  provisions  of  the  act,  to  make  or  give  any  undue  or 
unreasonable  preference  or  advantage  to  any  particular  person,  com- 
pany, firm,  corporation,  or  locality,  any  particular  description  of 
traffic,  in  any  respect  whatsoever,  or  to  subject  any  particular  person, 
company,  firm,  corporation,  or  locality  to  any  undue  or  unreasonable 


TEXAS   &   PACIFIC   E.    V.    INTERSTATE    COMMERCE    COM.  247 

prejudice  or  disadvantage  in  any  respect  -nbatever."  It  also  pro- 
vides that  every  sucii  couiuion  carrier  shall  al'fonl  "  all  reasonable, 
proper,  and  equal  facilities  for  the  interchange  of  tratlic  between 
their  respective  lines,  and  for  the  receiving,  forwarding,  and  deliver- 
ing of  passengers  and  property  to  and  from  their  respective  lines  and 
those  connecting  therewith,  and  shall  not  discriminate  in  their  rates 
and  charges  between  such  connecting  lines." 

The  fourth  section  makes  it  unlawful  for  any  such  common  carrier 
to  "  charge  or  receive  any  greater  compensation  in  the  aggregate  for 
the  transportation  of  passengers  or  of  like  kind  of  property,  under 
substantially  similar  circumstances  and  conditions,  for  a  shorter 
than  for  a  longer  distance  over  the  same  line,  in  the  same  direction, 
the  shorter  being  included  within  the  longer  distance,  but  this  shall 
not  be  construed  as  authorizing  any  common  carrier  to  charge  and 
receive  as  great  compensation  for  a  shorter  as  for  a  longer  distance"; 
and  provision  is  likewise  made  that,  "  upon  application  to  the  com- 
mission appointed  under  the  provisions  of  the  act,  such  common  car- 
rier may,  in  special  cases,  after  investigation  by  the  commission,  be 
authorized  to  charge  less  for  longer  than  for  shorter  distances  for  the 
transportation  of  passengers  or  property,"  and  that  "  the  commission 
may  from  time  to  time  prescribe  the  extent  to  which  such  designated 
common  carrier  may  be  relieved  from  the  operation  of  this  section  of 
the  act." 

The  powers  of  the  Interstate  Commission  are  not  very  clearly 
defined  in  the  act,  nor  is  its  method  of  procedure  very  distinctly 
outlined.  It  is,  however,  declared  in  the  twelfth  section,  as  amended 
March  2,  1889,  and  February  10,  1891,  that  the  commission  "  shall 
have  authority  to  inquire  into  the  management  of  the  business  of  all 
common  carriers  subject  to  the  provisions  of  the  act,  and  shall  keep 
itself  informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  have  the  right  to  obtain  from  such  common  car- 
riers full  and  complete  information  necessary  to  enable  the  commis- 
sion to  perform  the  duties  and  carry  out  the  objects  for  which  it  waa 
created ;  and  the  commission  is  hereby  authorized  and  required  to 
execute  and  enforce  the  provisions  of  the  act."  It  is  also  made  the 
duty  of  any  district  attorney  of  the  United  States  to  whom  the  com- 
mission may  apply  to  institute  in  the  proper  court,  and  to  prosecute 
under  the  direction  of  the  attorney  general  of  the  United  States,  all 
necessary  proceedings  for  the  enforcement  of  the  provisions  of  the 
act,  and  for  the  punishment  of  all  violations  thereof.  And  provision 
is  made  for  complaints  to  be  made  by  any  person,  firm,  corporation, 
association,  or  any  mercantile,  agricultural,  or  manufacturing  society, 
or  any  body  politic  or  municipal  organization,  before  the  commis- 
sion, and  for  an  investigation  of  such  complaints  to  be  made  by  the 
commission;  and  it  is  made  the  duty  of  the  commission  to  make 
reports  in  writing  in  respect  thereof,  which  shall  include  the  findings 
of  fact  upon  which  the  conclusions  of  the  commission  are  based. 


248  TEXAS   &   PACIFIC    R.    V.    INTERSTATE   COMMERCE    COM. 

t->gether  with  its  recommendation  as  to  what  reparation,  if  any, 
Hiioukl  be  made  by  any  common  carrier  to  any  party  or  parties  who 
may  be  found  to  have  been  injured ;  and  such  findings  so  made  shall 
thereafter,  in  all  judicial  proceedings,  be  deemed  jjrima  facie  evi- 
dence as  to  each  and  any  fact  found. 

In  the  present  case  no  complaint  seems  to  have  been  made  before 
the  commission  by  n.ny  person,  firm,  compan}',  or  other  organization, 
against  the  Texas  &  Pacific  Railway  Compan}',  of  any  disregard  by 
said  company  of  any  provision  of  the  statute  resulting  in  any  specific 
loss  or  damage  to  an^^  one;  nor  has  the  commission,  in  its  findings, 
disclosed  any  such  loss  or  damage  to  any  individual  complainant. 
And  it  is  made  one  of  the  contentions  of  the  defendant  company  that 
the  entire  proceeding  was  outside  of  the  sphere  of  action  appointed 
by  the  act  to  the  commission,  which  only  had  power,  as  claimed  by 
defendant,  to  inquire  into  complaint  made  b}'  some  person  or  body 
injured  by  some  described  act  of  the  defendant  company. 

The  complaint  in  the  present  case  was  made  by  certain  corpora- 
tions of  New  York,  Philadelphia,  and  San  Francisco,  known  as 
"  boards  of  trade"  or  "  chambers  of  commerce,"  which  appear  to  be 
composed  of  merchants  and  traders  in  those  cities  engaged  in  the 
business  of  reaching  and  supplying  the  consumers  of  the  United 
States  with  imported  luxuries,  necessities,  and  manufactured  goods 
generally,  and  as  active  competitors  with  the  merchants  at  Boston, 
Montreal,  Philadelphia,  New  Orleans,  San  Francisco,  Chicago,  and 
merchants  in  foreign  countries  who  import  direct  on  through  bills  of 
lading  issued  abroad. 

We  shall  assume,  in  the  disposition  of  the  present  case,  that  a 
valid  complaint  may  be  made  before  the  commission,  by  such  trade 
organizations,  based  on  a  mode  or  manner  of  treating  import  traffic 
by  a  defendant  company,  without  disclosing  or  containing  charges  of 
specific  acts  of  discrimination  or  undue  preference,  resulting  in  loss 
or  damage  to  individual  persons,  corporations,  or  associations. 

We  do  not  wish  to  be  understood  as  implying  that  it  would  be 
competent  for  the  commission,  without  a  complaint  made  before  it, 
and  without  a  hearing,  to  subject  common  carriers  to  penalties.  It 
is  also  obvious  that  if  the  commission  does  have  the  power,  of  its 
own  motion,  to  promulgate  general  decrees  or  orders  which  thereby 
become  rules  of  action  to  common  carriers,  such  exercise  of  power 
must  be  confined  to  the  obvious  purposes  and  directions  of  the  stat- 
ute. Congress  has  not  seen  fit  to  grant  legislative  powers  to  the 
commission. 

With  these  provisions  of  the  act  and  these  general  principles  in 
mind,  we  now  come  to  consider  the  case  in  hand. 

After  an  investigation  made  by  the  commission  on  a  complaint 
against  the  Texas  &  Pacific  Railway  Company  and  other  companies 
by  the  boards  of  trade  above  mentioned,  the  result  reached  was  the 
order  of  the  commission  made  on  January  29,  1891,  a  disregard  of 


TEXAS   &   PACIFIC    R.    V.    INTERSTATE    COMMERCE    COM.  249 

which  was  complained  of  by  the  commission  in  its  bill  or  petition 
filed  in  the  Circuit  Court  of  the  United  States. 

The  Texas  &  Pacific  Kailvvay  Company,  a  corporation  created  by 
laws  of  the  United  States,  and  also  possessed  of  certain  grants  from 
the  State  of  Texas,  owns  a  railroad  extending  from  the  city  of  New 
Orleans,  through  the  State  of  Texas,  to  El  Paso,  where  it  connects 
with  the  railroad  of  the  Southern  Pacific  Company,  the  two  roads 
forming  a  through  route  to  San  Francisco.  The  Texas  &  Pacific 
Railway  Company  has  likewise  connections  with  other  railroads  and 
steamers,  forming  through  freight  lines  to  Memphis,  St.  Louis,  and 
other  points  on  the  Missouri  River,  and  elsewhere. 

The  defendant  company  admitted  that,  as  a  scheme  or  mode  of 
obtaining  foreign  traflic,  it  had  agencies  by  which,  and  by  the  use  of 
through  bills  of  lading,  it  secured  shipments  of  merchandise  from 
Liverpool  and  London,  and  other  European  ports,  to  San  Francisco 
and  to  the  other  inland  points  named.  It  alleged  that,  in  order  to 
get  this  traffic,  it  was  necessary  to  give  through  rates  from  the  i)laces 
of  shipment  to  the  places  of  final  destination,  and  that  in  fixing  said 
rates  it  was  controlled  by  an  ocean  competition  by  sailing  and  steam 
vessels  by  way  of  the  Isthmus  and  around  the  Horn,  and  also,  to 
some  extent,  by  a  competition  through  the  Canada  route  to  tiie 
Pacific  coast.  These  rates,  so  fixed  and  controlled,  left  to  the 
defendant  company  and  to  the  Southern  Pacific  Company,  as  their 
share  of  the  charges  made  and  collected,  less  than  the  local  charges 
of  said  companies  in  transporting  similar  merchandise  from  New 
Orleans  to  San  Francisco,  and  so,  too,  as  to  foreign  merchandise 
carried  to  other  inland  points.  The  defendant  further  alleged  that 
unless  it  used  said  means  to  get  such  traffic  the  merchandise  to  the 
Pacific  coast  would  none  of  it  reach  New  Orleans,  but  would  go  by 
the  other  means  of  transportation ;  that  neither  the  community  of 
New  Orleans,  nor  any  merchant  or  shipper  thereof,  was  injured  or 
made  complaint;  that  the  traific  thus  secured  was  remunerative  to  the 
railway  company,  and  was  obviously  beneficial  to  the  consumers  at 
the  places  of  destination,  who  were  thus  enabled  to  get  their  goods  at 
lower  rates  than  would  prevail  if  this  custom  of  through  rates  was 
destroyed. 

As  we  have  already  stated,  the  commission  did  not  chai-ge  or  find 
that  the  local  rates  charged  by  the  defendant  company  were  unreason- 
able, nor  did  they  find  that  any  complaint  was  made  b}'  the  city  of 
New  Orleans,  or  by  any  person  or  organization  there  doing  business. 
Much  less  did  they  find  that  any  complaint  was  made  by  the  localities* 
to  which  this  traffic  was  carried,  or  that  any  cause  for  such  complaint 
existed. 

The  commission  justified  its  action  wholly  upon  the  construction 
put  by  it  on  the  act  to  regulate  commerce,  as  forbidding  the  commis- 
sion to  consider  the  "  circumstances  and  conditions"  attendant  upon 
the  foreign  traffic  as  such  "circumstances  and  conditions"  as  they 


250  TEXAS   &   PACIFIC   K.    V.  INTERSTATE   COMMERCE   CJM. 

are  directed  in  the  act  to  consider.  The  commission  thought  it  was 
constrained  by  the  act  to  regard  foreign  and  domestic  trafiic  as  like 
kinds  of  traffic  under  substantially  similar  circumstances  and  condi- 
tions, and  that  the  action  of  the  defendant  company  in  procuring 
through  traffic  that  would,  except  for  the  through  rates,  not  reach  the 
port  of  New  Orleans,  and  in  taking  its  jji-o  rata  share  of  such  rates, 
was  an  act  of  "  unjust  discrimination,"  within  the  meaning  of  the  act. 

In  so  construing  the  act,  we  think  the  commission  erred. 

As  we  have  already  said,  it  could  not  be  supposed  that  Congress, 
in  regulating  commerce,  would  intend  to  forbid  or  destroy  an  exist- 
ing branch  of  conniierce,  of  value  to  the  common  carriers  and  to  the 
consumers  within  the  United  States.  Clearly  express  language  must 
be  used  in  the  act,  to  justify  such  a  supposition. 

So  far  from  finding  such  language,  we  read  the  act  in  question  to 
direct  the  commission,  when  asked  to  find  a  common  carrier  guilty  of 
a  disregard  of  the  act,  to  take  into  consideration  all  the  facts  of  the 
given  case,  among  which  are  to  be  considered  the  welfare  and  advan- 
tage of  the  common  carrier,  and  of  the  great  body  of  the  citizens  of 
the  United  States  who  constitute  the  consumers  and  recipients  of  the 
merchandise  carried,  and  that  the  attention  of  the  commission  is  not 
to  be  confined  to  the  advantage  of  shippers  and  merchants  who  deal 
at  or  near  the  ports  of  the  United  States,  in  articles  of  domestic  pro- 
duction. Undoubtedly  the  latter  are  likewise  entitled  to  be  consid- 
ered; but  we  cannot  concede  that  the  commission  is  shut  up,  by  the 
terms  of  this  act,  to  solely  regard  the  complaints  of  one  class  of  the 
community.  We  think  that  Congress  has  here  pointed  out  that  in 
considering  questions  of  this  sort  the  commission  is  not  only  to  con- 
sider the  wishes  and  interests  of  the  shippers  and  merchants  of  large 
cities,  but  to  consider  also  the  desire  and  advantage  of  the  carriers  in 
securing  special  forms  of  traffic,  and  the  interest  of  the  public  that 
the  carriers  should  secure  that  traffic,  rather  than  abandon  it  or  not 
attempt  to  secure  it.  It  is  self-evident  that  many  cases  may  and  do 
arise  where,  although  the  object  of  the  carriers  is  to  secure  the  traffic 
for  their  own  purposes  and  upon  their  own  lines,  yet  nevertheless 
the  very  fact  that  they  seek,  by  the  charges  they  make,  to  secure  it, 
operates  in  the  interests  of  the  public. 

Moreover,  it  must  not  be  overlooked  that  this  legislation  is  experi- 
mental. Even  in  construing  the  terms  of  a  statute,  courts  must  take 
notice  of  the  history  of  legislation,  and,  out  of  different  possible 
constructions,  select  and  apply  the  one  that  best  comports  with  the 
genius  of  our  institutions,  and  therefore  most  likely  to  have  been  the 
construction  intended  by  the  lawmaking  power.  Commerce,  in  its 
largest  sense,  must  be  deemed  to  be  one  of  the  most  important  sub- 
jects of  legislation;  and  an  intention  to  promote  and  facilitate  it, 
and  not  to  hamper  or  destroy  it,  is  naturally  to  be  attributed  to 
Congress.  The  very  terms  of  the  statute,  that  charges  must  be 
"reasonable,"  that  discrimination  must  not  be  "unjust,"  and  that 


TEXAS    &    PACIFIC    It.    V.    INTERSTATE   COMMERCE   COM.  251 

preference  or  advantage  to  any  particular  person,  firm,  corporation, 
or  locality  must  not  be  "  undue"  or  "unreasonable,"  necessarily 
imply  that  strict  uniformity  is  not  to  be  enforced,  but  that  all  cir- 
cumstances and  conditions  which  reasonable  men  would  regard  as 
affecting  the  welfare  of  the  carrying  companies,  and  of  the  pro- 
ducers, shippers,  and  consumers,  should  be  considered  by  a  tribunal 
appointed  to  carry  into  effect  and  enforce  the  provisions  of  the  act. 

The  principal  purpose  of  the  second  section  is  to  prevent  unjust 
discrimination  between  shippers.  It  implies  that  in  deciding  whether 
differences  in  charges,  in  given  cases,  were  or  were  not  unjust,  there 
must  be  a  consideration  of  the  several  questions  whether  the  services 
rendered  were  "like  and  contemporaneous";  whether  the  kinds  of 
traffic  were  "like";  whether  the  transportation  was  effected  under 
"  substantially  similar  circumstances  and  conditions."  To  answ'er 
such  questions,  in  any  case  coming  before  the  commission,  requires 
an  investigation  into  the  facts;  and  we  think  that  Congress  must 
have  intended  that  whatever  would  be  regarded  by  common  carriers, 
apart  from  the  operation  of  the  statute,  as  matters  which  warranted 
differences  in  charges,  ought  to  be  considered,  in  forming  a  judgment 
whether  such  differences  were  or  were  not  "  unjust."  Some  charges 
might  be  unjust  to  shippers,  others  might  be  unjust  to  the  carriers. 
The  rights  and  interests  of  both  must,  under  the  terms  of  the  act,  be 
regarded  by  the  commission. 

The  third  section  forbids  any  undue  or  unreasonable  preference  or 
advantage  in  favor  of  any  person,  company,  firm,  corporation,  or 
locality  ;  and  as  there  is  nothing  in  the  act  which  defines  what  shall  be 
held  to  be  due  or  undue,  reasonable  or  unreasonable,  such  questions 
are  questions  not  of  law,  but  of  fact.  Tlie  mere  circumstance  that 
there  is  in  a  given  case  a  preference  or  an  advantage  does  not,  of  itself, 
show  that  such  preference  or  advantage  is  undue  or  unreasonable,  within 
the  meaning  of  the  act.  Hence  it  follows  that,  before  the  commission 
can  adjudge  a  common  carrier  to  have  acted  unlawfully,  it  must  ascer- 
tain the  facts  ;  and  here  again  we  think  it  evident  that  those  facts  and 
matters  which  carriers,  apart  from  any  question  arising  under  the  stat- 
ute, would  treat  as  calling,  in  given  cases,  for  a  preference  or  advan- 
tage, are  facts  and  matters  which  must  be  considered  In'  the  commission 
in  forming  its  judgment  whether  such  preference  or  advantage  is  undue 
or  unreasonable.  When  the  section  says  that  no  locality  shall  be 
subjected  to  anv  undue  or  unreasonable  prejudice  or  disadvantage  in 
any  respect  whatsoever,  it  does  not  mean  tliat  the  commission  is  to 
regard  only  the  welfare  of  tlie  locality  or  community  where  the  traffic 
originates,  or  where  the  goods  are  shii)ped  on  the  cars.  The  welfare 
of  the  locality  to  which  the  goods  are  sent  is  also,  under  the  terms  and 
spirit  of  the  act,  to  enter  into  the  question. 

The  same  observations  are  applicable  to  the  fourth  section,  or  the  so- 
called  "  long  and  short  haul  provision,"  and  it  is  unnecessary  to  repeat 
them. 


252  TEXAS    &    PACIFIC    R.    V.    INTERSTATE    COMMERCE    COM. 

The  only  argument  urged  in  favor  of  the  view  of  the  commission, 
that  is  drawn  upon  the  language  of  tlie  statute,  is  found  in  those  pro- 
visions of  the  statute  that  malse  it  obligator}'  on  the  common  carriers  to 
publish  their  rates,  and  to  file  with  the  commission  copies  of  joint  tariffs 
of  rates  or  charges  over  continuous  lines  or  routes  operated  b^'  more 
than  one  common  carrier  ;  and  it  is  said  that  the  place  at  which  it  would 
seem  that  joint  rates  should  be  published  for  the  information  of  ship- 
pers would  be  at  the  place  of  origin  of  the  freight,  and  that  this  cannot 
be  done,  or  be  compelled  to  be  done,  in  foreign  ports. 

The  force  of  this  contention  is  not  perceived.  Room  is  left  for  the 
application  of  these  provisions  to  traffic  originating  within  the  limits  of 
the  United  States,  even  if,  for  anj-  reason,  they  are  not  practicall}'  ap- 
plicable to  traffic  originating  elsewhere.  Nor  does  it  appea.  that  the 
commission  may  not  compel  all  common  carriers  within  the  reach  of 
their  jurisdiction  to  publish  such  rates,  and  to  furnish  the  commission 
with  all  statements  or  reports  prescribed  by  the  statute.  Nor  was 
there  any  allegation,  evidence,  or  finding  in  the  present  case  that  the 
Texas  &  Pacific  Railway  Company  has  failed  to  file  with  the  com- 
mission copies  of  its  joint  tariffs,  showing  the  joint  rates  from  English 
ports  to  San  Francisco,  nor  tliat  the  compan}-  lias  failed  to  make 
public  such  joint  rates  in  such  manner  as  the  commission  may  have 
directed. 

Another  position  taken  by  the  commission  in  its  report,  and  defended 
in  the  briefs  of  counsel,  is  that  it  is  the  duty  of  the  commission  to  so 
construe  the  act  to  regulate  commerce  as  to  make  it  practically  co- 
operate with  what  is  assumed  to  be  the  policy  of  the  tariff  laws.  This 
view  is  thus  stated  in  the  report :  — 

"  One  paramount  purpose  of  the  act  to  regulate  commerce,  manifest 
in  all  its  provisions,  is  to  give  to  all  dealers  and  shippers  the  same  rates 
for  similar  services  rendered  by  the  carrier  in  transporting  similar  freight 
over  its  line.  Now,  it  is  apparent  from  the  evidence  in  this  case  that 
man}-  American  manufacturers,  dealers,  and  localities,  in  almost  every 
line  of  manufacture  and  business,  are  the  competitors  of  foreign  manu- 
facturers, dealers,  and  localities,  for  supplying  the  wants  of  American  con- 
sumers at  interior  places  in  the  United  States,  and  that,  under  domestic 
bills  of  lading,  they  seek  to  require  from  American  carriers  like  service  as 
their  foreign  competitors,  in  order  to  place  their  manufactured  goods, 
property,  and  merchandise  with  interior  consumers.  The  act  to  regu- 
late commerce  secures  them  this  right.  To  deprive  them  of  it  by  any 
course  of  transportation  business  or  device  is  to  violate  the  statute." 
4  Interst.  Commerce  Cora.  R.  514,  515. 

Our  reading  of  the  act  does  not  disclose  an}-  purpose  or  intention  on 
the  part  of  Congress  to  thereby  reinforce  the  provisions  of  the  tariff 
laws.  These  laws  differ  wholly,  in  their  objects,  from  the  law  to  regu- 
late commerce.  Their  main  purpose  is  to  collect  revenues  with  which 
to  meet  the  expenditures  of  the  government,  and  those  of  their  pro- 
visions, whereb}-  Congress  seeks  to  so  adjust  rates  as  to  protect  Ameri- 


TEXAS    &    PACIFIC    R.    V.    INTERSTATE    COMMERCE   COM.  253 

can  manufacturers  and  producers  from  competition  by  foreign  low-priced 
labor,  operate  equally  in  all  parts  of  the  countr}'. 

The  effort  of  the  commission,  by  a  rigid  general  order,  to  deprive  the 
inland  consumers  of  the  advantage  of  through  rates,  and  to  thus  give  an 
advantage  to  the  traders  and  manufacturers  of  the  large  seaboard  cities, 
seems  to  create  the  very  mischief  which  it  was  one  of  the  objects  of  the 
act  to  remedy. 

Similar  legislation  by  the  Parliament  of  England  ma}'  render  it  prof- 
itable to  examine  some  of  the  decisions  of  the  courts  of  that  country 
construing  its  provisions. 

In  fact,  the  second  section  of  our  act  was  modelled  upon  section  90 
of  the  English  railway  clauses  consolidation  act  of  1845,  known  as  the 
"  Equality  Clause  "  ;  and  the  third  section  of  our  act  was  modelled  upon 
the  second  section  of  the  P^nglish  "  Act  for  the  better  regulation  of  the 
traffic  on  railways  and  canals"  of  July  10,  1854,  and  the  eleventh  section 
of  the  act  of  July  21,  1873,  entitled  ''  An  Act  to  make  better  provision 
for  the  carrying  into  effect  tlie  railway  and  canal  traffic  act,  1854,  and 
for  other  purposes  connected  therewith." 

One  of  the  first  cases  that  arose  under  the  act  of  1854  was  that  of 
Hozier  v.  The  Caledonian  Raihvay,  1  Nev.  &  McN.  27,  where  Hozier 
filed  a  petition  against  the  railway  company,  alleging  that  he  was  ag- 
grieved by  being  charged  nine  shillings  for  travelling  between  Mother- 
well and  Edinburgh,  a  distance  of  forty-thr-ee  miles  ;  while  passengers 
travelling  in  the  same  train,  and  in  the  class  of  carriage,  between  Glas- 
gow and  Edinburgh,  were  charged  only  two  shillings,  which  was  alleged 
to  amount  to  an  undue  and  unreasonable  preference.  But  the  petition 
■was  dismissed;  and  the  Court  said  :  *■'  The  only  case  stated  in  the  peti- 
tion is  that  passengers  passing  from  Glasgow  to  Edinburgh  are  carried 
at  a  cheaper  aggregate  rate  than  passengers  from  Motherwell  to  either 
of  these  places.  Now,  that  is  an  advantage,  no  doubt,  to  those  pas- 
sengers travelling  between  Edinburgh  and  Glasgow.  But  is  it  an 
unfair  advantage  over  other  passengers  travelling  between  intermediate 
stations?  The  complainer  must  satisfy  us  that  there  is  something  un- 
fair or  unreasonable  in  what  he  complains  of,  in  order  to  warrant  any 
interference.  Now  I  have  read  the  statements  in  the  petition,  and 
listened  to  the  argument  in  su[)port  of  it,  to  find  what  there  is  un- 
reasonable in  giving  that  advantage  to  through  passengers.  What 
disadvantage  do  Motherwell  passengers  suffer  by  this?  I  tliink  that 
no  answer  was  given  to  this,  except  that  there  was  none.  This  peti- 
tioner's complaint  may  be  likened  to  that  of  the  laborer  who,  having 
worked  all  day,  complained  that  others,  who  had  worked  less,  received 
a  penny  like  himself." 

The  case  of  Foreman  v.  Great  Eastern  Railway  Co.,  2  Nev.  &  McN. 
202,  was  decided  by  the  English  railway  commissioners  in  1875.  The 
facts  were  that  the  complainants  imported  coal  in  tlieir  own  ships  from 
points  in  the  north  of  England  to  Great  Yarmouth,  and  forwarded  the 
coal  to  various  stations  on    the   defendants'  railway',  between   Great 


254  TEXAS    &   PACIFIC    E.    V.    INTERSTATE    COMMERCE   COM. 

Yarmouth  and  Peterborough.  The  complahit  was  that  the  defendants' 
rates  for  carrying  coal  from  Yarmouth  to  stations  in  the  interior,  at 
which  complainants  dealt,  were  unreasonably  greater  than  the  rates 
charged  in  the  opposite  direction,  from  Peterborough  to  such  stations, 
and  that  such  difference  in  rates  was  made  by  the  defendants  for  the 
purpose  of  favoring  the  carriage  of  coal  from  the  interior,  as  against 
coal  brought  to  Yarmouth  b^'  sea,  and  carried  thence  into  the  interior 
over  the  defendants'  railway.  The  commissioners  found  that  it  was 
true  that  the  defendants  did  carry  coal  from  the  interior  to  London, 
Yarmouth,  and  other  seaports  on  their  line,  at  exceptionally  low  rates, 
but  that  this  was  done  for  the  purpose  of  meeting  the  competition  ex- 
isting at  those  places.  It  appeared  that  the  rate  from  Peterborough 
to  Thetford,  fifty-one  miles,  was  four  shillings,  while  the  rate  from 
Peterborough  to  Yarmouth,  one  hundred  miles,  was  only  three  shil- 
lings. The  commissioners  said:  "As,  however,  the  complainants  do 
not,  as  far  as  their  trade  in  Yarmouth  itself  is  concerned,  use  the  Great 
Eastern  Railway  at  all,  the  compan}'  cannot  be  said  to  prefer  other 
traffic  to  theirs  ;  nor  does  the  traffic  act  prevent  a  railway  company  from 
having  special  rates  of  charge  to  a  terminus  to  which  traffic  can  be  car- 
ried b}-  other  routes  or  other  modes  of  carriage  with  which  theirs  is  in 
competition." 

In  Harris  v.  Cockermouth  Railwa}*,  1  Nev.  &  McN.  97,  the  court 
held  it  to  be  an  undue  preference  for  a  railwa}'  company  to  concede  to 
the  owner  of  a  colliery  a  lower  rate  than  to  the  owners  of  other  collieries, 
from  the  same  point  of  departure  to  the  same  point  of  arriv^al,  merely 
because  the  person  favored  had  threatened  to  build  a  railway  for  his 
coal,  and  to  divert  his  traffic  from  defendant's  railwa}'.  But  Chief 
Justice  Cockburn  said  :  "I  quite  agree  that  this  court  has  intimated,  if 
not  absolutely"  decided,  that  a  coinpau}'  is  entitled  to  take  into  considera- 
tion an\-  circumstances,  either  of  a  general  or  of  a  local  character,  in 
considering  the  rate  of  charge  which  they  will  impose  upon  any  particular 
traffic.  .  .  .  As,  for  instance,  in  respect  of  terminal  traffic,  there  might 
be  competition  with  another  railway ;  and  in  respect  to  terminal  traffic, 
as  distinguished  from  intermediate  traffic,  it  might  well  be  that  they 
could  afford  to  carry  goods  over  the  whole  line  cheaper,  or  proportion- 
ately so,  than  they  could  over  an  intermediate  part  of  the  line." 

In  the  case  of  Budd  v.  London  &  Northwestern  Railway  Co.,  4  Nev. 
&  McN.  393,  and  in  London  &  Northwestern  Railway  v.  Evershed,  3 
App.  Cas.  1029,  it  was  held  that  it  was  not  competent  for  the  railway' 
company  to  make  discriminations  between  persons  shipping  from  the 
same  point  of  departure  to  the  same  point  of  arrival ;  but,  even  in  those 
cases,  it  was  conceded  that  there  might  be  circumstances  of  competition 
which  might  be  considered.  At  any  rate,  those  cases  have  been  much 
modified,  if  not  fully  overruled,  by  the  later  cases,  particularly  in  Denaby 
Main  Colliery  Co.  w.  Manchester,  Sheffield,  &  Lincolnshire  Ry.  Co.,  11 
App.  Cas.  97,  and  in  Phipps  v.  London  &  Northwestern  Railway,  [1892] 
2  Q.  B.  229,  236. 


TEXAS    &    rACIFIC    R.    V.    INTERSTATE    COMMERCE    COM.  255 

The  hitter  was  the  case  of  an  api)lication,  under  the  railway  and 
canal  trallie  acts,  for  an  order  enjoining  the  defendants  to  desist  from 
giving  an  undue  preference  to  the  owners  of  Butlins  and  Islip  furnaces, 
and  from  subjecting  the  traffic  of  the  complainants  to  an  undue  prefer- 
ence, in  the  matter  of  the  rates  charged  for  the  conveyance  of  coal, 
coke,  and  pig-iron  traffic,  and  also  for  an  order  enjoining  the  defend- 
ants to  desist  from  giving  an  unreasonable  preference  or  advantage  to 
the  owners  of  Butlins  and  Islip  furnaces,  and  the  traffic  therefrom,  b}' 
making  an  allowance  of  fourpence  per  ton  in  respect  of  coal,  coke,  and 
pig  iron  conveyed  for  them  by  the  defendants.  The  sidings  of  the 
Duston  furnaces,  belonging  to  the  complainants,  were  situated  on  the 
London  &  Northwestern  Railway,  at  a  distance  of  about  sixty  miles 
from  Great  Bridge,  one  of  tlie  pig-iron  markets  to  the  westward.  The 
sidings  of  the  Butlins  and  Islip  furnaces  were  situated  on  the  same  rail- 
wa}',  to  the  east  of  the  Duston  furnaces,  and  a  distance  from  the  pig- 
iron  market,  as  to  Butlins,  of  about  seventy-one  miles,  and,  as  to  Islip, 
of  about  eighty-two  miles.  Duston  had  only  access  to  the  London  & 
Northwestern,  but  Butlins  and  Tslip  had  access  not  only  to  the  London 
&  Northwestern,  but  also  to  the  Midland  Railwaj-.  The  London  & 
Northwestern  Company,  which  carried  the  Butlins  pig  iron  eleven  miles 
further,  and  the  Islip  pig  iron  twenty-two  miles  further,  than  tlie  Duston 
pig  iron,  charged  Butlins  0.95c?.  per  mile,  and  Islip  0.84fL  per  mile; 
while  they  charged  Duston  l.Ood.  per  mile;  so  that  the  total  charge 
per  ton  of  pig  iron  from  Duston  to  the  western  markets  was  5s.  2d., 
while  the  total  charge  per  ton  from  either  Butlins  or  Islip  was  os.  8d. 

When  the  case  was  before  the  railway  commissioners  it  was  said  bv 
Wills,  J.  :  "  It  is  complained  that,  although  along  the  London  &  N.  W. 
Railway  every  ton  of  pig  iron,  every  ton  of  coal,  and  every  ton  of  coke 
travels  a  longer  distance  in  order  to  reach  Islip  than  in  order  to  reach 
the  applicant's  premises,  the  charge  that  is  put  upon  it,  although 
greater  than  the  charge  wliich  is  put  upon  the  traffic  which  goes  to  the 
applicant's  premises,  is  not  sufficiently  greater  to  represent  the  increased 
distance  ...  I  first  observe  that  these  are,  in  ni}'  judgment,  eminently 
practical  questions,  and  if  this  court  once  attempts  the  hopeless  task  of 
dealing  with  questions  of  this  kind  with  any  approach  to  mathematical 
accuracy,  and  tries  to  introduce  a  precision  which  is  unattainable  in 
commercial  and  practical  matters,  it  would  do  infinite  mischief,  and  no 
good.  ...  It  seems  to  me  that  we  must  take  into  account  the  fact  that 
at  Butlins  and  Islip  there  is  an  effective  competition  with  the  Midland. 
Although  effective  competition  with  another  railway  company  or  canal 
company  will  not  of  itself  justify  a  preference  which  is  otherwise  quite 
beyond  the  mark,  yet  still  it  is  not  a  circumstance  that  can  be  thrown 
out  of  the  question,  and  I  think  there  is  abundance  of  authority  for  that. 
It  follows  also,  I  think,  from  the  view  which  I  am  disposed  to  take  of 
these  —  being  eminenth'  practical  —  questions,  that  you  must  give  due 
consideration  to  the  commercial  necessities  of  the  companies,  as  a  mat- 
ter to  be  thrown  in  along  with  the  others.  ...  I  wish  emphatically  to 


256  TEXAS    &   PACIFIC    R.    V.    INTERSTATE    COMMERCE    COM. 

be  considered  as  not  having  attempted  to  lay  down  any  principles  with 
regard  to  this  question  of  undue  preference,  or  as  to  the  grounds  upon 
which  I  have  decided  it.  In  my  judgment,  undue  preference  is  a  ques- 
tion of  fact  in  each  case." 

The  railway  commissioners  refused  to  interfere,  and  the  case  was  ap- 
pealed.    Lord  Herschell  stated  the  case,  and  said  :  — 

•'  This  application  is  made  under  the  second  section  of  the  Railway 
and  Canal  Tralfic  Act,  1854,  which  provides  that  '  no  railway  company 
sliall  make  or  give  any  undue  or  unreasonable  preference  or  advantage 
to  or  in  favor  of  any  particular  person  or  conipan}-,  or  any  particular 
description  of  traffic,  in  any  respect  whatever,  nor  shall  any  such  com-  ^ 
pany  subject  any  particular  person  or  compunv.  or  particular  descrip- 
tion of  traffic,  to  any  undue  or  unreasonable  prejudice  or  disadvantage 
in  an\'  respect  whatever.' 

"  The  question,  therefore,  which  the  tribunal,  whether  it  be  the  court 
or  the  commissioners  before  whom  such  a  question  comes,  has  to  deter- 
mine, is  whether  an  undue  preference  or  advantage  is  being  given,  or 
whether  the  one  part}-  is  being  undulj-  prejudiced  or  put  to  a  disadvan- 
tage, as  compared  with  the  other.  I  think  it  is  clear  that  the  section 
implies  that  there  may  be  a  preference,  and  that  it  does  not  make  CA'ery 
inequality  of  charge  an  undue  preference. 

'■■Of  course,  if  the  circumstances  so  differ  that  the  difference  of 
charge  is  in  exact  conformit}'  witli  the  difference  of  circumstances,  there 
would  be  no  preference  at  all.  But,  as  has  been  pointed  out  before, 
what  the  section  provides  is  that  there  shall  not  be  an  undue  or  un- 
reasonable preference  or  prejudice.  And  it  cannot  be  doubted  that 
whether,  in  particular  instances,  there  has  been  an  undue  or  unreason- 
able prejudice  or  preference,  is  a  question  of  fact.  In  Palmer  v.  Lon- 
don &  Southwestern  Railway  Co.,  L.  R.  1  C.  P.  593,  Chief  Justice 
Erie  said  :  '  I  beg  to  sa}^  that  the  argument  from  autliority  seems  to 
me  to  be  without  conclusive  force  in  guiding  the  exercise  of  this  juris- 
diction ;  the  question  whether  undue  prejudice  has  been  caused  being  a 
question  of  fact,  depending  on  the  tnatters  proved  in  each  case.' 

"  In  Denaby  Main  Colliery  Co.  v.  Manchester,  &c.  Ry.  Co.,  3  Nev. 
&  McN.  426,  when  it  was  before  the  Court  of  Appeals,  on  an  appeal 
arising  out  of  the  proceedings  before  the  railway  commissioners.  Lord 
Selborne,  then  Lord  Chancellor,  said  :  '  The  defendants  gave  a  decided, 
distinct,  and  great  advantage,  as  it  appears  to  me,  to  the  distant  col- 
lieries. That  may  be  due  or  undue,  reasonable  or  unreasonable  ;  but, 
under  these  circumstances,  is  not  the  reasonableness  a  question  of  fact? 
Is  it  not  a  question  of  fact,  and  not  of  law,  whether  such  a  preference 
is  due  or  undue?  Unless  you  can  point  to  some  other  law  which  de- 
fines what  shall  be  held  to  be  reasonable  or  unreasonable,  it  must  be, 
and  is,  a  mere  question,  not  of  law,  but  of  fact.' 

"  The  Lord  Chancellor  there  points  out  that  the  mere  circumstance 
that  there  is  an  advantage  does  not  of  itself  show  that  it  is  an  undue  pref- 
erence, within  the  meaning  of  the  act,  and,  further,  that  whether  there  be 


TEXAS    &    PACIFIC    R.    V.   INTERSTATE   COMMERCE   COM.  257 

such  undue  preference  or  advantage  is  a  question  of  fact,  and  of  fact 
alone,  of  the  act  of  1854.  No  rule  is  given  to  guide  the  court  or  the 
tribunal  in  the  determination  of  cases  or  applications  made  under  this 
second  section.  The  conclusion  is  one  of  fact,  to  be  arrived  at,  looking 
at  the  matter  broadly,  and  applying  common  sense  to  the  facts  that  are 
proved.  I  quite  agree  with  Mr.  Justice  Wills  that  it  is  impossible  to 
exercise  a  jurisdiction  such  as  is  conferred  liy  this  section  by  any  pro- 
cess of  mere  mathematical  or  arithmetical  calculation.  When  you 
have  a  variety  of  circumstances,  differing  in  the  one  case  from  the  other, 
you  cannot  say  that  a  difference  of  circumstances  represents  or  is  equiva- 
lent to  such  a  fraction  of  a  penny  difference  of  charge  in  the  one  case  as 
compared  with  the  other.  A  much  broader  view  must  be  taken,  and  it 
would  be  hopeless  to  attempt  to  decide  a  case  b}^  any  attempted  calcu- 
lation. I  should  say  that  the  decision  must  be  arrived  at  broadly  and 
fairly,  by  looking  at  all  the  circumstances  of  the  case,  —  that  is,  look- 
ing at  all  the  circumstances  which  are  proper  to  be  looked  at,  because, 
of  course,  the  ver}-  question  in  this  case  is  whether  a  particular  circum- 
stance ought  or  ought  not  to  be  considered  ;  but,  keeping  in  view  all 
the  circumstances  which  ma}'  legitimatelv  be  taken  into  consideration, 
then  it  becomes  a  mere  question  of  fact.  .  .  .  Now,  there  is  no  doubt 
that  in  coming  to  their  determination  the  court  below  did  liave  regard 
to  competition  between  the  Midland  and  the  Northwestern,  and  the 
situation  of  these  two  furnaces  which  rendered  such  competition  inevi- 
table. If  the  appellants  can  make  out  that,  in  point  of  law,  that  is  a 
consideration  which  cannot  be  permitted  to  have  an}'  influence  at  all, 
that  those  circumstances  must  be  rigidly  excluded  from  consideration, 
and  that  the}'  are  not  circumstances  legitimatel}'  to  be  considered,  no 
doubt  they  establish  that  the  court  below  has  erred  in  point  of  law. 
But  it  is  necessar}'  for  them  to  go  as  far  as  that  in  order  to  make  any 
way  with  this  appeal,  because  once  admit  that  to  any  extent,  for  any  pur- 
pose, the  question  of  competition  can  be  allowed  to  enter  in,  whether 
the  court  has  given  too  much  weight  to  it  or  too  little  becomes  a  ques- 
tion of  fact,  and  not  of  law.  The  point  is  undoubtedly  a  very  important 
one.  .   .  . 

"As  I  have  already  observed,  the  second  section  of  the  act  of  18.54 
does  not  af!'ord  to  the  tribunal  any  kind  of  guide  as  to  what  is  undue  or 
unreasonable.  It  is  left  entirely  to  the  judgment  of  the  court  on  a  re- 
view of  the  circumstances.  Can  we  say  that  the  local  situation  of  one 
trader,  as  compared  with  another,  which  enables  him,  by  having  two 
competing  routes,  to  enforce  upon  the  carrier  by  either  of  these  routes 
a  certain  amount  of  compliance  with  his  demands,  which  would  be  im- 
possible if  he  did  not  enjoy  that  advantage,  is  not  among  the  circum- 
stances which  may  be  taken  into  consideration?  I  am  looking  at  the 
question  now  as  between  trader  and  trader.  It  is  §aid  that  it  is  unfair 
to  the  trader  who  is  nearer  the  market  that  he  should  not  enjoy  the  full 
benefit  of  the  advantage  to  be  derived  from  his  geographical  situation 
at  a  point  on  the  railwaj-  nearer  the  market  than  his  fellow  trader  who 

17 


258  TEXAS    &   PACIFIC    R.    V.    INTERSTATE    COMMERCE    COM. 

trades  at  a  point  more  distant ;  but  I  cannot  see,  looking  at  the  matter  as 
between  the  two  traders,  wh}-  the  advantageous  position  of  the  one  trader, 
in  having  his  works  so  placed  that  he  has  two  competitive  routes,  is  not 
as  much  a  circumstance  to  be  taken  into  consideration  as  the  geographical 
position  of  the  other  trader,  who,  though  he  has  not  the  advantage  of 
competition,  is  situated  at  a  point  on  the  line  geographically  nearer  the 
market.  Wh}-  the  local  situation  in  regard  to  its  proximity  to  the  mar- 
ket is  to  be  the  onl}^  consideration  to  be  taken  into  account  in  dealing 
with  the  matter,  as  a  matter  of  what  is  reasonable  and  right  as  between 
the  two  traders,  I  cannot  understand. 

"  Of  course,  if  you  are  to  exclude  this  from  consideration  altogether, 
the  result  must  inevitably  be  to  deprive  the  trader  who  has  the  two  com- 
peting routes  of  a  certain  amount  of  the  advantages  which  be  derives 
from  that  favorable  position  of  his  works.  AH  that  I  have  to  say  is 
that  I  cannot  find  anything  in  the  act  which  indicates  that  when  yon 
are  left  at  large,  —  for  you  are  left  at  large,  —  as  to  whether,  as  be- 
tween two  traders,  the  company  is  showing  an  undue  and  unreasonable 
preference  to  the  one,  as  compared  with  the  other,  you  are  to  leave  out 
that  circumstance,  any  more  than  any  other  circumstance  which  would 
affect  men's  minds.  .  .  .  One  class  of  cases  unquestionably  intended 
to  be  covered  by  the  section  is  that  in  which  traffic  from  a  distance,  of 
a  character  that  competes  with  the  traffic  nearer  the  market,  is  charged 
low  rates  because,  unless  such  low  rates  were  charged,  it  would  not 
come  into  the  market  at  all.  It  is  certain,  unless  some  such  principle  as 
that  were  adopted,  a  large  town  would  necessarily  have  its  food  suppi}' 
greatl}'  raised  in  price.  So  that,  although  the  object  of  the  company-  is 
simpU'  to  get  the  traffic,  the  public  have  an  interest  in  their  getting  the 
traffic  and  allowing  the  carriage  at  a  rate  which  will  render  that  traffic 
possible,  and  so  bring  the  goods  at  a  cheaper  rate,  and  one  which  makes 
it  possible  for  those  at  a  greater  distance  to  compete  with  those  situate 
nearer  to  it.  ...  I  cannot  but  think  that  a  lower  rate  which  is  charged 
from  a  more  distant  point  by  reason  of  a  competing  route  which  exists 
thence  is  one  of  the  cases  which  may  be  taken  into  account  under  those 
provisions,  and  which  would  fall  within  the  terms  of  the  enactment. 

"Suppose  that  to  insist  on  absolutely  equal  rates  would  practically 
exclude  one  of  the  two  railways  from  the  traffic ;  it  is  obvious  that 
these  members  of  the  public  who  are  in  the  neighborhood  where  they 
can  have  the  benefit  of  this  competition  would  be  prejudiced  by  any  such 
proceedings.  And  further,  inasmuch  as  competition  undoubtedly  tends 
to  diminution  of  charges,  and  the  charge  of  carriage  is  one  which  ulti- 
mately falls  upon  the  consumer,  it  is  obvious  that  the  public  have  an 
interest  in  the  proceedings  under  this  act  of  Parliament  not  being  so 
used  as  to  destroy  a  traffic  which  can  never  be  secured  but  by  some 
such  reduction  of  ^liarge.  and  the  destruction  of  which  would  be  preju- 
dicial to  the  public,  by  tending  to  increase  prices." 

The  learned  judge  then  proceeded  to  discuss  the  authorities,  and 
pointed  out  that  the  case,  of  Budd  v.  London  &  Northwestern  Railway 


TEXAS   &    PACIFIC    R.    V.    INTERSTATE   COMMERCE    COM.  259 

Co.,  and  Everslied's  Case,  are  no  longer  law,  so  far  as  the  second  sec- 
lion  of  the  act  of  1851  is  concerned. 

Lindley  and  Kay,  l^ord  Justices,  gave  concurring  opinions,  and  the 
conclusion  of  the  court  was  that  the  commissioners  did  not  err  in  taking 
into  consideration  the  fact  that  there  was  a  competing  line  together  with 
all  the  other  facts  of  the  case,  and  in  holding  tliat  a  preference  or  ad- 
vantage thence  arising  was  not  undue  or  unreasonable. 

The  precise  (luestion  now  before  us  has  never  been  decided  in  tlie 
American  cases,  but  there  are  several  in  which  somewhat  analogous 
questions  have  been  considered. 

Alchison,  Topeka,  &  Santa  Fe  Railroad  v.  Denver  &  Xew  Orleans 
Railroad,  110  U.  S.  667,  was  a  case  arising  under  a  provision  of  the 
Constitution  of  the  State  of  Colorado  which  declares  "  that  all  indi- 
viduals, associations,  and  corporations  shall  have  equal  rights  to  have 
persons  and  property  transported  over  any  railroad  in  this  State,  and 
no  undue  or  unreasonable  discrimination  shall  be  made  in  chai-ges  or 
facilities  for  transportation  of  freight  or  passengers  within  the  State, 
and  no  railroad  company  shall  give  any  preference  to  individuals,  asso- 
ciations, or  corporations  in  furnishing  cars  or  motive  power."  This 
court  held  that  under  this  constitutional  provision  a  railroad  company 
which  had  made  provisions  with  a  connecting  road  for  the  transaction 
of  joint  business  at  an  established  union  junction  was  not  required  to 
make  similar  provisions  with  a  rival  connecting  line  at  another  near 
point  on  its  line,  and  that  the  constitutional  provision  is  not  violated 
b}'  refusing  to  give  to  a  connecting  road  the  same  arrangement  as  to 
through  rates  wliich  are  given  to  another  connecting  line,  unless  the 
conditions  as  to  the  service  are  substantiall}'  alike  in  both  cases. 

The  sixth  section  of  the  act  of  Congress  (July  1,  1862)  relative  to  the 
Union  Pacific  Railroad  Compan}'  provided  that  the  government  shall  at 
all  times  have  the  preference  in  the  use  of  the  railroad,  "at  fair  and 
reasonable  rates  of  compensation,  not  to  exceed  the  amount  paid  b}- 
private  parties  for  the  same  kind  of  service."  In  the  case  of  Union 
Pac.  Railway-  v.  U.  S.,  117  U.  S.  355,  it  was,  in  effect,  held  that  the  ser- 
vice rendered  by  a  railway'  compan}-  in  transporting  local  passengers 
from  one  point  on  its  line  to  another  is  not  identical  with  the  service 
rendered  in  transporting  through  passengers  over  the  same  rails. 

A  petition  was  filed  before  the  Interstate  Commerce  Commission  by 
the  Pittsburgli,  Cincinnati,  &  St.  Louis  Railway  Company  against  the 
Baltimore  &  Ohio  Railroad  Company,  seeking  to  compel  the  latter  com- 
panj-  to  withdraw  from  its  lines  of  road,  upon  which  business  competi- 
tion with  that  of  the  petitioner  was  transacted,  the  so-called  "  party 
rates,"  and  to  decline  to  give  such  rates  in  the  future  ;  also,  for  an 
order  requiring  said  company  to  discontinue  the  practice  of  selling 
excursion  tickets  at  less  than  the  regular  rate.  The  cause  was  heard 
before  the  commission,  which  held  the  so-called  "  party  rate  tickets."  in 
so  far  as  they  were  sold  for  lower  rates  for  each  member  of  a  party  of 
ten  or  more  than  rates  contemporaneously  charged  for  the  transporta- 


260  TEXAS    &   PACIFIC   E.    V.   INTERSTATE   COMMERCE    COM. 

tion  of  single  passengers  between  the  same  points,  constituted  unjust 
discrimination,  and  were  therefore  illegal.  The  defendant  company  re- 
fusing to  obey  the  mandate  of  the  commission,  the  latter  filed  a  bill  in 
the  Circuit  Court  of  the  United  Slates  for  the  Southern  District  of  Ohio, 
asking  that  the  defendant  be  enjoined  from  continuing  in  its  violation 
of  the  order  of  the  commission.  The  Circuit  Court  dismissed  the  bills 
Some  of  the  observations  made  by  Jackson,  Circuit  Judge,  may  well  be 
cited  (43  Fed.  37)  :  "  Subject  to  the  two  leading  prohibitions  that  their 
charges  shall  not  be  unjust  or  unreasonable,  and  that  they  shall  not 
unjustly  discriminate,  so  as  to  give  undue  preference  or  advantage, 
or  subject  to  undue  prejudice  or  disadvantage  persons  or  traffic  similarly 
circumstanced,  the  act  to  regulate  commerce  leaves  common  carriers  as 
they  were  at  the  common  law,  free  to  make  special  contracts  looking  to 
the  increase  of  their  business,  to  classify  their  traffic,  to  adjust  and 
apportion  their  rates  so  as  to  meet  the  necessities  of  commerce,  and 
generally  to  manage  iheir  important  interests  upon  the  same  principles 
which  ai'e  regarded  as  sound,  and  adopted  in  other  trades  and  pursuits. 
Conceding  the  same  terms  of  contract  to  all  persons  equally,  ma}'  not 
the  carrier  adopt  both  wdiolesale  and  retail  rates  for  its  transportation 
service?"  Again  :  "  The  English  cases  establish  the  rule  that,  in  pass- 
ing upon  the  question  of  undue  or  unreasonable  preference  or  disad- 
vantage, it  is  not  only  legitimate,  but  proper,  to  take  into  consideration, 
besides  the  mere  differences  in  charges,  various  elements,  such  as  the 
convenience  of  the  public,  tlie  fair  interests  of  the  carrier,  the  relative 
quantities  or  A'olume  of  the  traffic  involved,  the  relative  cost  of  the  ser- 
vices and  profit  to  the  company,  and  the  situation  and  circumstances  of 
the  respective  customers  with  reference  to  each  other,  as  competitive  or 
otherwise." 

The  case  was  brought  to  this  Court,  and  the  judgment  of  the  Circuit 
Court  dismissing  the  bill  was  affirmed.  Interstate  Commerce  Commis- 
sion V.  Baltimore  &  Ohio  Railroad,  145  U.  S.  263.  The  court,  through 
Mr.  Justice  Brown,  cited  with  approval  passages  from  the  opinion  of 
Judge  Jackson  in  the  court  below,  and,  among  other  things,  said :  "It 
is  not  all  discriminations  or  preferences  that  fall  within  the  inhibition  of 
the  statute;  only  such  as  are  unjust  and  unreasonable." 

Again,  speaking  of  the  sale  of  a  ticket  for  a  number  of  passengers 
at  a  less  rate  than  for  a  single  passenger,  it  was  said:  "It  does  not 
operate  to  the  prejudice  of  the  single  passenger,  who  cannot  be  said  to 
l)e  injured  by  the  fact  that  another  is  able,  in  a  particular  instance,  to 
travel  at  a  less  rate  than  he.  If  it  operates  injurioush-  to  any  one,  it  is 
to  the  rival  road,  which  has  not  adopted  corresponding  rates  ;  but,  as 
before  observed,  it  was  not  the  design  of  the  act  to  stifle  competition, 
nor  is  there  an}-  legal  injustice  in  one  person  procuring  a  particular  ser- 
vice cheaper  than  another.  ...  If  these  tickets  were  withdrawn  the 
defendant  road  would  lose  a  large  amount  of  travel,  and  the  single-trip 
passenger  would  gain  absolutely  nothing." 

The  conclusions  that  we  draw  from  the  history  and  language  of  the 


TEXAS    &   rACIFIC    K.    V.   INTERSTATE   COMMERCE    COM.  261 

act,  and  from  the  decisions  of  our  own  and  the  English  courts,  are  mainly 
these  :  that  the  purpose  of  the  act  is  to  promote  and  facilitate  com- 
merce, liy  the  adoption  of  regulations  to  make  cliarges  for  transportation 
just  and  reasonable,  and  to  forbid  undue  and  unreasonable  preferences 
or  discriminations  ;  that,  in  passing  upon  questions  arising  under  the 
act,  the  tribunal  appointed  to  enforce  its  provisions,  whetlier  the  coui- 
mission  or  the  courts,  is  empowered  to  fully  consider  all  the  circumstances 
and  conditions  that  reasonabl}'  appU'  to  the  situation,  and  that  in  the 
exercise  of  its  jurisdiction  the  tribunal  may  and  should  consider  tlie 
legitimate  interests  as  well  of  the  carrying  companies  as  of  tlie  traders 
and  shippers,  and,  in  considering  whether  any  particular  locality  is  sub- 
jected to  an  undue  preference  or  disadvantage,  the  welfare  of  the  com- 
munities occupying  the  localities  where  the  goods  are  delivered  is  to 
be  considered,  as  well  as  that  of  the  communities  wliich  are  in  the 
locality  of  the  place  of  shipment ;  that  among  the  circumstances  and 
conditions  to  be  considered,  as  well  in  the  case  of  traffic  originating  in 
foreign  ports  as  in  the  case  of  traffic  originating  within  the  limits  of  the 
United  States,  competition  that  affects  rates  should  be  considered,  and 
in  deciding  whether  rates  and  charges  made  at  a  low  rate  to  secure 
foreign  freights,  wliich  would  otherwise  go  by  other  competitive  routes, 
are  or  are  not  undue  and  unjust,  the  fair  interests  of  the  carrier  com- 
panies, and  the  welfare  of  the  communit}'  which  is  to  receive  and  con- 
sume the  commodities,  are  to  be  considered  ;  that  if  the  commission, 
instead  of  confining  its  action  to  redressing,  on  complaint  made  by 
some  particular  person,  firm,  corporation,  or  localit}',  some  specific 
disregard  by  common  carriers  of  provisions  of  the  act,  proposes  to  pro- 
mulgate general  orders,  which  thereby  become  rules  of  action  to  the 
carrying  companies,  the  spirit  and  letter  of  the  act  require  that  such 
orders  should  have  in  view  the  purpose  of  promoting  and  facilitating 
commerce,  and  the  welfare  of  all  to  be  affected,  as  well  the  carriers  as 
the  traders  and  consumers  of  the  country'. 

It  may  be  said  that  it  would  be  impossible  for  the  commission  to 
frame  a  general  order  if  it  were  necessary  to  enter  upon  so  wide  a  field 
of  investigation,  and  if  all  interests  that  are  liable  to  be  affected  were 
to  be  considered.  This  criticism,  if  well  founded,  would  go  to  show 
that  such  orders  are  instances  of  general  legislation,  requiring  an  exer- 
cise of  the  law  making  power,  and  that  the  general  orders  made  by  the 
commission  in  March,  1889,  and  Jaimary,  1891,  instead  of  being  regu- 
lations calculated  to  promote  commerce  and  enforce  the  express  pro- 
visions of  the  act,  are  themselves  laws  of  wide  import,  destroying  some 
branches  of  commerce  that  have  long  existed,  and  undertaking  to  change 
the  laws  and  customs  of  transportation  in  the  promotion  of  what  is  sup- 
posed to  be  public  polic}'. 

This  is  manifest  from  the  facts  furnished  us  in  the  report  and  findings 
of  the  commission,  attached  as  an  exhibit  to  the  bill  filed  in  the  Circuit 
Court. 

It  is  stated  in  that  report  that  the  Illinois  Central  Railroad  Compan}-, 


2G2  TEXAS    &   PACIFIC   K.   V.   INTERSTATE    COMMERCE    COM. 

one  of  the  respondents  in  the  proceeding  before  the  commission,  averred 
in  its  answer  that  it  was  constrained,  by  its  obedience  to  the  order  of 
March,  1889,  to  decline  to  talce  for  shipment  any  import  traffic,  and,  to 
its  great  detriment,  to  refrain  from  the  business,  for  the  reason  that,  to 
meet  the  action  of  the  competing  Unes,  it  would  have  to  make  a  less 
rate  on  the  import  than  on  the  domestic  traffic. 

Upon  this  disclosure  that  their  order  had  resulted  in  depriving  that 
company  of  a  valuable  part  of  its  traffic,  (to  say  nothing  of  its  necessary' 
effect  in  increasing  the  cliarges  to  be  finally  paid  b}-  the  consumers,) 
the  commission,  in  its  report,  naively  remarks,  "•  This  lets  the  Illinois 
Central  Railway  Compan}'  out."     4  Interst  Commerce  Com.  R.  458. 

We  also  learn  from  the  same  source  that  there  was  competent  evi- 
dence adduced  before  the  commission,  on  the  part  of  the  Penns3lvania 
Railroad  Compan}',  that  since  that  company,  in  obedience  to  the  order 
of  March,  1889,  has  charged  the  full  inland  rate  on  the  import  traffic, 
the  road's  business  in  that  particular  has  considerably'  fallen  off ;  that 
the  steamship  lines  have  never  assented  to  the  road's  charging  its  full 
inland  rates,  and  have  been  making  demands  on  the  road  for  a  proper 
division  of  the  through  rate  ;  that,  if  it  were  definitely  determined  that 
the  road  was  not  at  liberty  to  charge  less  than  the  full  inland  rate,  the 
result  would  be  that  it  would  cffectuall}-  close  ever}'  steamship  line  sail- 
ing to  and  from  Baltimore  and  Philadelphia. 

The  commission  did  not  find  it  necessar}'  to  consider  this  evidence, 
because  the  Pennsylvania  Railroad  Company  was  before  it  in  the  atti- 
tude of  having  obe^'ed  the  order. 

We  do  not  refer  to  these  matters  for  the  purpose  of  indicating  what 
conclusions  ought  to  have  been  reached  b}'  the  commission  or  bj'  the 
courts  below  in  respect  to  what  were  proper  rates  to  be  charged  by  the 
Texas  &  Pacific  Railwa}'  Compan}'.  That  was  a  question  of  fact,  and, 
if  the  inquiry  had  been  conducted  on  a  proper  basis,  we  should  not 
have  felt  inclined  to  review  conclusions  so  reached.  But  we  mention 
them  to  show  that  there  manifestly  was  error  in  excluding  facts 
and  circumstances  that  ought  to  have  been  considered,  and  that  this 
error  arose  out  of  a  misconception  of  the  purpose  and  meaning  of 
the  act. 

The  Circuit  Court  held  that  the  order  of  Januar}*  29,  1891,  was  a  law- 
ful order,  and  enjoined  the  defendant  company  from  carrying  any  article 
of  import  traffic  shipped  from  any  foreign  port  through  any  port  of 
entiy  in  the  United  States,  or  any  port  of  entry  in  a  foreign  country 
adjacent  to  the  United  States,  upon  through  bills  of  lading,  and  destined 
to  any  place  within  the  United  States,  upon  any  other  than  the  pub- 
lished inland  tariff  covering  the  transportation  of  other  freight  of  like 
kind  over  its  line  from  such  port  of  entry  to  such  place  of  destination, 
or  from  charging  or  accepting  for  its  share  of  through  rates  upon  im- 
jiorted  traffic  a  lower  sum  than  it  charges  or  receives  for  domestic 
traffic  of  like  kind,  to  the  same  destination,  from  the  point  at  which 
the  imported  traffic  enters  the  country. 


TEXAS    &   PACIFIC   K.    V.    INTERSTATE   COMMERCE    COM.  263 

In  treating  the  facts  of  the  case,  the  court  says:  "It  must  be  con- 
ceded as  true,  for  the  purposes  of  the  present  case,  that  the  rates  for 
the  transi)ortatiou  of  traffic  from  Liverpool  and  London  to  San  Francisco 
are,  in  effect,  fixed  and  controlled  by  the  competition  of  sailing  vessels 
between  these  ports,  and  also  b}^  the  competition  of  steamships  and 
sailing  vessels  in  connection  with  railroads  across  the  Isthnms  of 
Panama,  none  of  which  are  in  an}'  respect  subject  to  the  act  to  regulate 
commerce.  It  must  also  be  conceded  that  the  favorable  rates  given  to 
the  foreign  traffic  are,  for  reasons  to  which  it  is  now  unnecessary  to 
revert,  somewhat  remunerative  to  the  defendant ;  and  it  must  also  be 
conceded  that  the  defendant  would  lose  the  foreign  traffic,  by  reason  of 
the  competition  referred  to,  and  the  revenue  derived  therefrom,  unless 
it  carries  at  the  lower  rates,  and  b}'  so  doing  is  enabled  to  get  part 
of  it,  which  would  otherwise  go  from  London  and  Liverpool  to  San 
Francisco,  around  the  Horn,  or  by  way  of  the  Isthmus."  Interstate 
Commerce  Commission  v.  Texas  &  Pacific  Railway,  52  Fed.  187. 

The  Circuit  Court  did  not  discuss  the  case  at  length,  either  as  to  its 
law  or  facts,  but,  in  effect,  approved  the  order  of  January  29,  18'J1, 
as  valid,  and  enjoined  the  defendant  company  from  disregarding  it. 

The  Circuit  Court  of  Appeals  seems  to  have  disapproved  of  the  con- 
struction put  on  the  act  by  the  commission.   .   .   . 

Having  thus  intimated  its  dissent  from,  or,  at  least,  its  distrust  of, 
the  view  of  the  commission,  the  court  proceeded  to  affirm  the  decree 
of  the  Circuit  Court  and  the  validity  of  the  order  of  the  commission, 
upon  the  ground  that,  even  if  ocean  competition  should  be  regarded  as 
creating  a  dissimilar  condition,  yet  that  in  the  present  case  the  disparity 
in  rates  was  too  great  to  be  justified  by  that  condition. 

This  course  proceeded,  we  think,  upon  an  erroneous  view  of  the  posi- 
tion of  the  case.  That  question  was  not  presented  to  the  consideration 
of  the  Court.  There  was  no  allegation  in  the  commission's  bill  or  peti- 
tion that  the  inland  rates  charged  by  the  defendant  company  were 
unreasonable.  That  issue  was  not  presented.  The  defendant  company 
was  not  called  upon  to  make  an}-  allegation  on  the  subject.  No  testi- 
mony was  adduced  by  either  party  on  such  an  issue.  What  the  com- 
mission complained  of  was  that  the  defendant  refused  to  recognize  the 
lawfulness  of  its  order ;  and  what  the  defendant  asserted,  by  way  of 
defence,  was  that  the  order  was  invalid,  because  the  commission  had 
avowedly  declined  to  consider  certain  "  circumstances  and  conditions," 
which,  under  a  proper  construction  of  the  act,  it  ought  to  have  con- 
sidered. 

If  the  Circuit  Court  of  Appeals  were  of  opinion  that  the  commis- 
sion, in  making  its  order,  had  misconceived  the  extent  of  its  powers, 
and  if  the  Circuit  Court  had  erred  in  affirming  the  validity  of  an  order 
made  under  such  misconception,  the  duty  of  the  Circuit  Court  of  Ap- 
peals was  to  reverse  the  decree,  set  aside  the  order,  and  remand  the 
cause  to  the  commission,  in  order  that  it  might,  if  it  saw  fit,  proceed 
therein  according  to  law.     The  defendant  was  entitled  to  have  its  de- 


264  TEXAS    &   PACIFIC    R.    V.    INTERSTATE    COMMERCE   COM. 

fence  considered,  in  the  first  instance,  at  least,  bj'  the  commission, 
upon  a  full  consideration  of  all  the  circumstances  and  conditions  upon 
which  a  legitimate  order  could  be  founded.  The  questions  whether  cer- 
tain charges  were  reasonable  or  otherwise,  whether  certain  discrimina- 
tions were  due  or  undue,  were  questions  of  fact,  to  be  passed  upon  by 
the  commission  in  the  light  of  all  facts  duly  alleged  and  supported  In- 
competent evidence,  and  it  did  not  comport  with  the  true  scheme  of  the 
statute  that  the  Circuit  Court  of  Appeals  should  undertake,  of  its  own 
motion,  to  find  and  pass  upon  such  questions  of  fact,  in  a  case  in  the 
position  in  which  the  present  one  was. 

We  do  not,  of  course,  mean  to  imply  that  the  commission  ma}-  not 
directly  institute  proceedings  in  a  Circuit  Court  of  the  United  States 
charging  a  common  carrier  with  disregard  of  provisions  of  the  act,  and 
that  thus  it  ma}'  become  the  duty  of  the  court  to  try  the  case  in  the 
first  instance.  Nor  can  it  be  denied  that,  even  when  a  petition  is  filed 
by  the  commission  for  the  purpose  of  enforcing  an  order  of  its  own,  the 
court  is  authorized  to  "  hear  and  determine  the  matter  as  a  court  of 
equity,"  which  necessaril}-  implies  that  the  court  is  not  concluded  by 
the  findings  or  conclusions  of  the  commission  ;  yet,  as  the  act  provides 
that  on  such  hearing  the  findings  of  fact  in  the  report  of  said  commis- 
sion shall  be  2))'ima  facie  evidence  of  the  matters  therein  stated,  we 
think  it  plain  that  if,  in  such  a  case,  the  commission  has  failed,  in  its 
proceedings,  to  give  notice  to  the  alleged  offender,  or  has  unduh'  re- 
stricted its  inquiries,  upon  a  mistaken  view  of  the  law,  the  court  ought 
not  to  accept  the  findings  of  the  commission  as  a  legal  basis  for  its  own 
action,  but  should  either  inquire  into  the  facts  on  its  own  account,  or 
send  the  case  back  to  the  commission  to  be  lawfully'  proceeded  in. 

The  mere  fact  that  the  disparity  between  the  through  and  the  local 
rates  was  considerable,  did  not,  of  itself,  warrant  the  court  in  finding 
that  such  dispai-ity  constituted  an  undue  discrimination.  Much  less  did 
it  justify  the  court  in  finding  that  the  entire  difference  between  the  t^o 
rates  was  undue  or  unreasonable,  especially  as  there  was  no  person, 
firm,  or  corporation  complaining  that  he  or  they  had  been  aggrieved  by 
such  disparity. 

The  decree  of  the  Circuit  Court  of  Ajypeals  is  reversed.  The  de- 
cree of  the  Circuit  Court  is  also  reversed.,  and  the  cause  is  remanded 
to  that  court,  with  directions  to  dismiss  the  hill. 

Mr.  Justice  Harlan,  with  whom  concurred  Mr.  Justice  Brown, 
dissenting.^ 

The  question  is  presented  whether  the  Texas  &  Pacific  Railway 
Company  can,  consistently  with  the  act  of  Congress,  charge  a  higher 
rate  for  the  transportation  of  goods  starting  from  New  Orleans  and 
destined  to  San  Francisco  than  for  the  transportation  between  the  same 
places  of  goods  of  the  same  kind  in  all  the  elements  of  bulk,  weight, 

1  Part  of  this  opinion  is  omitted.  —  Ed. 


TEXAS    &    PACIFIC    R.   V.    I^iTERSTATE    COMMERCE   COM.  265 

value,  and  expense  of  carriage,  brought  to  New  Orleans  from  Liverpool 
on  a  through  bill  of  lading,  and  to  be  carried  to  San  Francisco.  If  this 
question  be  answered  in  the  affirmative  ;  if  all  the  railroad  companies 
whose  lines  extend  inland  from  the  Atlantic  and  Pacific  seaboards  in- 
dulge in  like  practices,  and  if  one  may  do  so,  all  ma}'  and  will  do  so  ; 
if  such  discrimination  by  American  railways,  having  arrangements  with 
foreign  companies,  against  goods,  the  product  of  American  skill,  enter- 
prise, and  labor,  is  consistent  with  the  act  of  Congress  —  then  the  titU' 
of  that  act  should  have  been  one  to  regulate  commerce  to  the  injury  of 
American  interests,  and  for  the  benefit  of  foreign  manufacturers  and 
dealers.  .   .   . 

I  am  unable  to  find  in  these  sections  any  authorit}'  for  the  commis- 
sion, or  for  a  carrier  subject  to  the  provisions  of  the  act  of  Congress,  to 
take  into  consideration  the  rates  established  by  ocean  lines  as  affecting 
the  charges  that  an  American  carrier  maj'  make  for  the  transportation 
of  property  over  its  routes.   .  .    . 

Congress  intended  that  all  property  transported  b}'  a  carrier  subject 
to  the  provisions  of  the  act  should  be  carried  without  an}'  discrimina- 
tion because  of  its  origin.  The  rule  intended  to  be  established  was  one 
of  equality  in  charges,  as  between  a  carrier  and  all  shippers,  in  respect 
of  like  and  contemporaneous  service  performed  b}'  the  carrier  over  its 
line,  between  the  same  points,  without  discrimination  based  upon  con- 
ditions and  circumstances  arising  out  of  that  carrier's  relations  with 
other  carriers  or  companies,  especially  those  who  cannot  be  controlled 
by  the  laws  of  the  United  States.  .   .  . 

It  seems  to  me  that  any  other  interpretation  of  the  act  of  Congress 
puts  it  in  the  power  of  railroad  companies  which  have  established,  or 
may  establish,  business  arrangements  with  foreign  companies  engaged 
in  ocean  transportation,  to  do  the  grossest  injustice  to  American  inter- 
ests. I  find  it  impossible  to  believe  that  Congress  intended  that  freight 
originating  in  Europe  or  Asia  and  transported  hy  an  American  railwa}' 
from  an  American  port  to  another  part  of  the  United  States  could 
be  given  advantages  in  the  matter  of  rates,  for  services  performed 
in  this  country,  which  are  denied  to  like  freight  originating  in  this 
countr}-,  and  passing  over  the  same  line  of  railroad  between  the  same 
points.  To  say  that  Congress  so  intended  is  to  say  that  its  pui'i)Ose 
was  to  subordinate  American  interests  to  the  interests  of  foreign  coun- 
tries and  foreign  corporations.  Such  a  result  will  necessarily  follow 
from  any  interpretation  of  the  act  that  enables  a  railroad  comijany  to 
exact  greater  compensation  for  the  ti-ansportation  from  an  American 
port  of  entry,  of  merchandise  originating  in  this  country,  than  is  ex- 
acted for  the  transportation  over  the  same  route  of  exactly  the  same 
kind  of  merchandise  brought  to  that  port  from  Europe  or  Asia,  on  a 
through  bill  of  lading,  under  an  arrangement  with  an  ocean  transporta- 
tion company.  Under  such  an  interpretation  the  rule  established  by 
Congress  to  secure  the  public  against  unjust  discrimination  by  carriers 
subject  to  the  provisions  of  the  Interstate  Commerce  Act  would  be  dis- 


266  TEXAS   &   PACIFIC    R.    V.   INTERSTATE   COMMERCE    COM. 

placed  b}-  a  rule  practically  established  in  foreign  countries  b}-  foreign 
companies,  acting  in  combination  with  American  railroad  corporations 
seeking,  as  might  well  be  expected,  to  increase  their  profits,  regardless 
of  the  interests  of  the  public  or  of  individuals. 

I  am  not  much  impressed  by  the  anxiety  which  the  railroad  company 
professes  to  have  for  the  interests  of  the  consumers  of  foreign  goods 
and  products  brought  to  this  country  under  an  arrangement  as  to  rates 
made  b}'  it  with  ocean  transportation  lines.  We  are  dealing  in  this 
case  only  with  a  question  of  rates  for  the  transportation  of  goods  from 
New  Orleans  to  San  Francisco  over  the  defendant's  railroad.  The 
consumers  at  San  Francisco,  or  those  who  ma}'  be  supplied  from  that 
city,  have  no  concern  whether  the  goods  reach  them  b^-  way  of  railroad 
from  New  Orleans,  or  bj'  water  around  Cape  Horn,  or  by  the  route 
across  the  Isthmus  of  Panama.   .   .   . 

It  is  said  that  the  Interstate  Commerce  Commission  is  entitled  to  take 
into  consideration  the  interests  of  the  carrier.  My  view  is  that  the  act 
of  Congress  prescribes  a  rule  which  precludes  the  commission  or  the 
courts  from  taking  into  consideration  an}'  facts  outside  of  the  inquir}', 
■whether  the  carrier,  for  like  and  contemporaneous  services,  performed 
in  this  country  under  substantially  similar  circumstances  and  conditions, 
ma}'  charge  one  shipper  more  or  less  than  he  charges  another  shipper 
of  like  goods  over  the  same  route,  and  between  the  same  points.  Un- 
doubtedly, the  carrier  is  entitled  to  reasonable  compensation  for  the 
service  it  performs.  But  the  necessity  that  a  named  carrier  shall  se- 
cure a  particular  kind  of  business  is  not  a  sufficient  reason  for  permit- 
ting it  to  discriminate  unjustl}"  against  American  shippers,  by  denviug 
to  them  advantages  granted  to  foreign  shippers.  Congress  has  not 
legislated  upon  such  a  theory.  It  has  not  said  that  the  inquir}'  whether 
the  carrier  has  been  guilty  of  unjust  discrimination  shall  depend  upon 
the  financial  necessities  of  the  carrier.  On  the  contrary,  its  purpose 
was  to  correct  the  evils  that  had  arisen  from  unjust  discrimination  made 
by  carriers  engaged  in  interstate  commerce.  It  has  not,  1  think,  de- 
clared, nor  can  I  suppose  it  will  ever  distincth'  declare,  that  an  Ameri- 
can railway  companj',  in  order  to  secure  for  itself  a  particular  business, 
and  realize  a  profit  therefrom,  ma}'  burden  interstate  commerce  in  arti- 
cles originating  in  this  country  by  imposing  higher  rates  for  the  trans- 
portation of  such  articles  from  one  point  to  another  point  in  the  United 
States  than  it  charges  for  the  transportation  between  the  same  points, 
under  the  same  circumstances  and  conditions,  of  like  articles  originating 
in  Europe,  and  received  b}-  such  compan}'  on  a  through  bill  of  lading 
issued  al)road.  Does  any  one  suppose  that  if  the  Interstate  Commerce 
bill,  as  originall_y  presented,  had  declared,  in  express  terms,  that  an 
American  I'ailroad  company  might  charge  more  for  the  transportation 
of  American  freight  between  two  given  places  in  this  countr}-  than  it 
chai'ged  for  foreign  freight  between  the  same  points,  that  a  single  legis- 
lator would  have  sanctioned  it  by  his  vote?  Does  any  one  suppose  tliat 
an  American  President  would  have  approved  such  legislation?  .  .  . 


WIGHT   V.    UNITED    STATES.  Hi 

I  cannot  accept  this  view,  and  therefore  dissent  from  the  opinion  and 
judgment  of  tlie  court. 

1  am  autiiorized  by  Mr.  Justice  Brown  to  say  tliat  he  concurs  in  this 
opinion. 

Mr.  Chief  Justice  Fuller,  dissenting. 

In  my  judgment,  the  second  and  third  sections  of  the  Interstate 
Commerce  Act  are  rigid  rules  of  action,  binding  the  commission  as  well 
as  tlie  railway  companies.  The  similar  circumstances  and  conditions 
referred  to  in  the  act  are  those  under  v/hich  the  traffic  of  the  railways 
is  conducted,  and  the  competitive  conditions  wliich  may  be  taken  into 
consideration  by  the  commission  are  tlie  competitive  conditions  within 
the  field  occupied  b}-  the  carrier,  and  not  competitive  conditions  arising 
wholly  outside  of  it. 

I  am  therefore  constrained  to  dissent  from  the  opinion  and  judgment 
of  tlie  court. 


WIGHT   V.   UNITED    STATES. 
Supreme  Court  of  the  United  States,   1897. 

[167  U.  S.  512.] 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. ^ 
In  order  to  induce  Mr.  Bruening  to  transfer  liis  transportation  from 
a  competing  road  to  its  own  line,  the  Baltimore  &  Ohio  Railroad  Com- 
pan}-,  through  the  defendant,  in  the  first  place,  made  an  arrangement 
b}'  whicii,  for  15  cents  per  hundred  weiglit,  it  would  bring  the  beer  from 
Cincinnati,  and  deliver  it  at  his  warehouse  ;  that  afterwards  this  ar- 
rangement was  changed,  and  it  delivered  the  beer  to  Mr.  Bruening  at 
its  depot,  and  allowed  Iiira  3h  cents  per  hundred  for  carting  it  to  his 
warehouse.  As  Mr.  Bruening  had  the  benefit  of  a  siding  connection 
with  the  competing  road,  and  could  get  the  beer  delivered  over  that  road 
at  his  warehouse  for  15  cents,  it  apparently  could  not  induce  him  to 
transfer  his  business  from  the  other  road  to  its  own  without  extending 
to  liim  this  rebate.  During  all  this  time  it  was  canying  beer  for  Mr. 
Wolf  from  the  same  place  of  sliipment  (Cincinnati)  to  the  same  depot 
in  Pittsburg,  and  charging  him  15  cents  therefor.  Mr.  Wolf  had  no 
siding  connection  with  the  rival  road,  and  therefore  had  to  pay  for  his 
cartage,  by  whichever  road  it  was  carried.  His  warehouse  was,  in  a 
direct  line,  140  j-ards  from  the  depot,  while  Mr.  Bruening's  was  172 
yards,  though  the  latter  generally  carted  the  beer  b}'  a  longer  route,  on 
account  of  the  steepness  of  the  ascent.  Now,  it  is  contended  b}'  the 
defendant  that  it  was  necessary  for  the  Baltimore  &  Ohio  Company  to 

*  Part  of  the  opiuion  is  omitted.  —  Ed. 


268  WIGHT   V.    UNITED    STATES. 

offer  this  inducement  to  Mr.  Bruening  in  order  to  get  his  business,  and 
n(;t  necessarj'  to  make  the  like  offer  to  Mr.  "WolT,  because  lie  would 
have  to  go  to  the  expense  of  carling.  b}-  whichever  road  he  transported  ; 
that  therefore  the  traffic  was  not  "  under  substantially  similar  circum- 
stances and  conditions,"  within  the  terms  of  section  2.  We  are  unable 
to  concur  in  tliis  view.  Whatever  the  Baltimore  &  Ohio  Compan3' 
might  lawfully  do  to  draw  business  from  a  competing  line,  whatever 
inducements  it  might  offer  to  the  customers  of  that  competing  line  to 
induce  them  to  change  their  canier,  is  not  a  question  involved  in  tiiis 
case.  The  wrong  prohibited  by  the  section  is  a  discrimination  between 
shippers.  It  was  designed  to  compel  every  carrier  to  give  equal  rights 
to  all  shippers  over  its  own  road,  and  to  forbid  it  by  any  device  to  en- 
force higher  charges  against  one  than  another.  Counsel  insist  that  the 
purpose  of  the  section  was  not  to  prohibit  a  carrier  from  rendering 
more  service  to  one  shipper  than  to  another  for  the  same  charge,  but 
only  that  for  the  same  service  the  charge  should  be  equal,  and  that  the 
effect  of  this  arrangement  was  simply  the  rendering  to  Mr.  Bruening  of 
a  little  greater  service  for  the  15  cents  than  it  did  to  Mr.  Wolf.  They 
say  that  the  section  contains  no  prohibition  of  extra  service  or  extra 
privileges  to  one  shipper  over  that  rendered  to  another.  The}'  ask 
whether,  if  one  shipper  has  a  siding  connection  with  the  road  of  a  car- 
rier, it  cannot  run  the  cars  containing  such  shipper's  freight  onto  that 
siding,  and  thus  to  his  warehouse,  at  the  same  rate  that  it  runs  cars  to 
its  own  depot,  and  there  delivers  goods  to  other  shippers  wlio  are  not 
so  fortunate  in  the  matter  of  sidings.  But  the  service  performed  in 
transporting  from  Cincinnati  to  the  depot  at  Pittsburg  was  precisely 
alike  for  each.  The  one  shipper  paid  15  cents  a  hunch-ed  ;  the  other, 
in  fact,  but  11^  cents.  It  is  true,  he  formally  paid  15  cents,  but  he 
received  a  rebate  of  Si-  cents  ;  and  regard  must  always  be  had  to  the 
substance,  and  not  to  the  form.  Indeed,  the  section  itself  forliids  the 
carrier,  '•  directly  or  indirectly  by  any  special  rate,  rebate,  drawback,  or 
other  device,"  to  charge,  demand,  collect,  or  receive  from  any  person 
or  persons  a  greater  or  less  compensation,  etc.  And  section  6  of  the 
act,  as  amended  in  1889,  throws  light  upon  the  intent  of  the  statute; 
for  it  requires  the  common  carrier,  in  publishing  schedules,  to  "state 
separately  the  terminal  charges,  and  any  rules  or  regulations  which  in 
an}  wise  change,  affect  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges."  It  was  the  purpose  of  the  sec- 
tion to  enforce  equality  between  shippers,  and  it  prohibits  any  rebate 
or  other  device  by  which  two  shippers,  shipping  over  the  same  line,  the 
same  distance,  under  the  same  circumstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor. 

It  may  be  that  the  phrase,  "under  substantially  similar  circumstances 
and  conditions,"  found  in  section  4  of  the  act,  and  where  the  matter 
of  the  long  and  short  haul  is  considered,  may  have  a  broader  mean- 
ing or  a  wider  reach  than  the  same  phrase  found  in  section  2.  It 
will  be  time  enough  to  determine  that  question  when  it  is  presented. 


INTERST.  COMMERCE  COM.  V.  DETROIT,  GRAND  HAVEN,  ETC.  R.      269 

For  this  case  it  is  enough  to  hold  that  that  phrase,  as  found  in 
section  2,  refers  to  the  matter  of  carriage,  and  does  not  include 
competition. 

We  see  no  error  in  the  record,  and  the  judgment  of  the  District  Court 
is  affirmed. 

Mr.  Justice  White  concurs  in  the  judgment. 


INTERSTATE   COMMERCE   COMMISSION  v.    DETROIT, 
GRAND   HAVEN,    &   MILWAUKEE   RAILWAY. 

Supreme  Court  of  the  United  States,   1897. 

[167  U.  S.  633.] 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. ^ 

The  petition  of  Stone  &  Carten,  retail  merchants  at  Ionia,  addressed 
to  the  Interstate  Commerce  Commission,  alleged  violations  by  the 
railway  company  of  sections  2,  3,  and  4  of  the  Interstate  Commerce 
Act. 

The  opinion  of  the  commission  sustained  the  petition  avowedly 
under  section  4  of  the  act.   .   .   . 

The  sole  complaint  urged  is  that  the  railway  company  carts  goods 
to  and  from  its  station  or  warehouse  at  Grand  Rapids  without  charg- 
ing its  customers  for  such  service,  while  its  customers  at  Ionia  are 
left  themselves  to  bring  their  goods  to  and  take  them  from  the  com- 
pany's warehouse,  and  that,  in  its  schedules  posted  and  published  at 
Grand  Rapids,  there  is  no  notice  or  statement  by  the  company  of  the 
fact  that  it  furnishes  such  cartage  free  of  charge.  These  acts  are 
claimed  to  constitute  violations  of  sections  4  and  6  of  the  Interstate 
Commerce  Act.   .  .  . 

For  a  period  of  upward  of  twenty-five  years  before  these  proceed- 
ings this  company  has  openly  and  notoriously,  at  its  own  expense, 
transferred  goods  and  merchandise  to  and  from  its  warehouse  to  the 
places  of  business  of  its  patrons  in  the  city  of  Grand  Rapids.  The 
station  of  the  company,  'though  within  the  limits  of  the  city,  is  dis- 
tant, on  an  average,  1^  miles  from  the  business  sections  of  the  city 
where  the  traffic  of  the  places  tributary  to  the  company's  road  origi- 
nates and  terminates.   .   .  . 

Under  the  facts  as  found  and  the  concessions  as  made,  the  Com- 
mission's proposition  may  be  thus  stated.  There  is,  conventionally, 
no  difference,  as  to  distance,  between  Ionia  and  Grand  Rapids,  and 
the  same  rates  and  charges  for  like  kinds  of  property  are  properly 
made  in  the  case  of  both  cities.     But,  as  there  is  an  average  distance 

^  Part  of  the  opiuiou  is  omitted. 


270      INTERST.  COMMEECE  COM.  V.  DETROIT,  GRAND  HAVEN,  ETC.  E. 

of  1^  of  a  mile  between  the  station  at  Grand  Rapids  and  the  ware- 
houses  and  offices  of  the  shippers  and  consignees,  such  average  dis- 
tance must  be  regarded  as  part  of  the  railway  company's  line,  if  the 
company  furnishes  transportation  facilities  for  such  distance ;  and  if 
it  refrains  from  making  any  charge  for  such  transportation  facilities, 
and  fails  to  furnish  the  same  facilities  at  Ionia,  this  is  eqnivalent  to 
charging  and  receiving  a  greater  compensation  in  the  aggregate  for 
the  transportation  of  a  like  kind  of  property  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance. 

The  Circuit  Conrt  of  Appeals  was  of  opinion  that  this  proposition 
is  based  on  a  false  assumption,  namely,  that  the  distance  between 
the  company's  station  and  the  warehouses  of  the  shippers  and  con- 
signees is  part  of  the  company's  railway  line,  or  is  made  such  by  the 
act  of  the  company  in  furnishing  vehicles  and  men  to  transport  the 
goods  to  points  throughout  the  city  of  Grand  Rapids.  The  view  of 
that  court  was  that  the  railway  transportation  ends  when  the  goods 
reach  the  terminus  or  station  and  are  there  unshipped,  and  that  any- 
thing the  company  does  afterwards,  in  the  way  of  land  transporta- 
tion, is  a  new  and  distinct  service,  not  embraced  in  the  contract  for 
railway  carriage.  The  court,  in  a  learned  opinion  by  District  Judge 
Hammond,  enforced  this  view  by  a  reference  to  numerous  English 
cases,  which  hold  that  the  collecting  and  delivery  of  goods  is  a  sepa- 
rate and  distinct  business  from  that  of  railway  carriage;  that,  when 
railroad  companies  undertake  to  do  for  themselves  this  separate 
business,  they  thereby  are  subjected  to  certain  statutory  regulations 
and  restrictions  in  respect  to  such  separate  business ;  and  that  they 
cannot  avoid  such  restrictions  by  making  a  consolidated  charge  for 
the  railway  and  cartage  service.     43  U.  S.  App.  308. 

We  agree  with  the  Circuit  Court  of  Appeals  jn  thinking  that  the 
fourth  section  of  the  Interstate  Commerce  Act  has  in  view  only  the 
transportation  of  passengers  and  property  by  rail,  and  that,  when 
the  passengers  and  property  reached  and  were  discharged  from  the 
cars  at  the  company's  warehouse  or  station  at  Grand  Rapids,  for  the 
same  charges  as  those  received  for  similar  service  at  Ionia,  the  duties 
and  obligations  cast  upon  this  company  by  the  fourth  section  were 
fulfilled  and  satisfied.  The  subsequent  history  of  the  passengers  and 
pi'operty,  whether  carried  to  their  places  of  abode  and  of  business  by 
their  own  vehicles,  or  b}'  those  furnished  by  the  railway  company, 
would  not  concern  the  Interstate  Commerce  Commission.   . 

The  decree  of  the  Circuit  Court  of  Appeals  is  affirmed. 


INTERSTATE   COMMERCE   COM.   V.   ALABAMA  MID.   RAILWAY.      271 


INTERSTATE   COMMERCE   COMMISSION  v.    ALABAMA 
MIDLAND   RAILWAY. 

Supreme  Court  of  the  United  States,  1897. 

[168  U.  S.  144.] 

Ox  the  27th  day  of  June,  1892,  the  board  of  trade  of  Troy,  Ala., 
filed  a  complaint  before  the  Interstate  Commerce  Commission,  at 
Washington,  D.  C,  against  the  Alabama  Midland  Railway  Company 
and  the  Georgia  Central  Railroad  Company  and  their  connections; 
claiming  tliat,  in  the  rates  charged  for  transportation  of  property  by 
the  railroad  companies  mentioned,  and  their  connecting  lines,  there 
was  a  discrimination  against  the  town  of  Troy,  in  violation  of  the 
terms  and  provisions  of  the  Interstate  Commerce  Act  of  Congress  of 
1887. 

The  general  ground  of  complaint  was  that,  Troy  being  in  active 
competition  for  business  with  Montgomery,  the  defendant  lines  of 
railway  unjustly  discriminate  in  their  rates  against  the  former,  and 
gave  the  latter  an  undue  preference  or  advantage,  in  respect  to  certain 
commodities  and  classes  of  traffic.^  .  .  . 

The  commission,  having  heard  this  complaint  on  the  evidence 
theretofore  taken,  ordered,  on  the  15th  day  of  August,  1893,  the 
roads  participating  in  the  traffic  involved  in  this  case  "  to  cease 
and  desist "  from  charging,  demanding,  collecting,  or  receiving  any 
greater  compensation  in  the  aggregate  for  services  rendered  in  such 
transportation  than  is  specified.   .   .   . 

The  defendants  having  failed  to  heed  these  orders,  the  commission 
thereupon  filed  this  bill  of  complaint  in  the  Circuit  Court  of  the 
United  States  for  the  Middle  District  of  Alabama,  in  equity,  to  com- 
pel obedience  to  the  same. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

Several  of  the  assignments  of  error  complain  of  the  action  of  the 
Circuit  Court  of  Appeals  in  not  rendering  a  decree  for  the  enforce- 
ment of  those  portions  of  the  order  of  the  Interstate  Commerce  Com- 
mission which  prescribed  rates  to  be  thereafter  charged  by  the 
defendant  companies  for  services  performed  in  the  transportation  of 
goods. 

Discussion  of  those  assignments  is  rendered  unnecessary  by  the 
recent  decisions  of  this  court,  wherein  it  has  been  held,  after  elabo- 
rate argument,  that  Congress  has  not  conferred  upon  the  Interstate 
Commerce  Commission  the  legislative  power  of  prescribing  rates, 
either  maximum,  or  minimum,  or  absolute,  and  that,  as  it  did  not  give 
the  express  power  to  the  commission,  it  did  not  intend  to  secure  the 
same  result  indirectly,  by  empowering  that  tribunal,   after  having 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


272      INTERSTATE    COJVIMERCE    COM.    V.    ALABAMA   MID.    RAILWAY. 

determined  what,  in  reference  to  the  past,  were  reasonable  and  just 
rates,  to  obtain  from  the  courts  a  peremptory  order  that  in  the  future 
the  railroad  companies  should  follow  the  rates  thus  determined  to 
have  been  in  the  past  reasonable  and  just.  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.  S.  184;  Interstate  Commerce  Commission  v.  Cincinnati,  New 
Orleans,   &  Texas  Pacific  Railway,   167  U.   S.  479. 

Errors  are  likewise  assigned  to  the  action  of  the  court  in  having 
failed  and  refused  to  affirm  and  enforce  the  report  and  opinion  of  the 
commission,  wherein  it  was  found  and  decided,  among  other  things, 
that  the  defendant  common  carriers  which  participate  in  the  trans- 
portation of  class  goods  to  Troy  from  Louisville,  St.  Louis,  and 
Cincinnati,  and  from  New  York,  Baltimore,  and  other  Northeastern 
points,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  phosphate  rock  from  South  Carolina  and  Florida  to 
Troy,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  cotton  from  Troy  to  the  ports  of  New  Orleans, 
Brunswick,  Savannah,  Charleston,  West  Point,  or  Norfolk,  as  local 
shipments,  or  for  export,  have  made  greater  charges,  under  substan- 
tially similar  circumstances  and  conditions,  for  the  shorter  distance 
to  or  from  Troy  than  for  longer  distances  over  the  same  lines  in  the 
same  direction,  and  have  unjustly  discriminated  in  rates  against 
Troy,  and  subjected  said  place  and  dealers  and  shippers  therein  to 
undue  and  unreasonable  prejudice  and  disadvantage  in  favor  of 
Montgomery,  Eufaula,  Columbus,  and  other  places  and  localities, 
and  dealers  and  shippers  therein,  in  violation  of  the  provisions  of 
the  act  to  regulate  commerce. 

Whether  competition  between  lines  of  transportation  to  Mont- 
gomery, Eufaula,  and  Columbus  justifies  the  giving  to  those  cities 
a  preference  or  advantage  in  rates  over  Tro}',  and,  if  so,  whether 
such  a  state  of  facts  justifies  a  departure  from  equality  of  rates 
without  authority  from  the  Interstate  Commerce  Commission,  under 
the  proviso  to  the  fourth  section  of  the  act,  are  questions  of  con- 
struction of  the  statute,  and  are  to  be  determined  before  we  reach  the 
question  of  fact  in  this  case. 

It  is  contended  in  the  briefs  filed  on  behalf  of  the  Interstate  Com- 
mission that  the  existence  of  rival  lines  of  transportation,  and  con- 
sequently of  competition  for  the  traffic,  are  not  facts  to  be  considered 
by  the  commission  or  by  the  courts  when  determining  whether  prop- 
erty transported  over  the  same  line  is  carried  under  "  substantially 
similar  circumstances  and  conditions,"  as  that  phrase  is  found  in 
the  fourth  section  of  the  act. 

Such,  evidently,  was  not  the  construction  put  upon  this  provision 
of  the  statute  by  the  Commission  itself  in  the  present  case,  for  the 
record  discloses  that  the  Commission  made  some  allowance  for  the 
alleged  dissimilarity  of  circumstances  and  conditions,  arising  out  of 
competition  and  situation,  as  affecting  transportation  to  Montgomery 


INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY.      273 

and  Troj',  respectively,  aud  that  among  the  errors  assigned  is  one 
complaining  that  the  court  erred  in  not  holding  that  the  rates  pre- 
scribed by  the  commission  in  its  order  made  due  allowance  for  such 
dissimilarity. 

So,  too,  in  In  re  Louisville  &  Nashville  Kailroad,  1  Interst.  Com- 
merce Com.  R.  31,  78,  in  discussing  the  long  and  short  haul  clause,  it 
was  said  by  the  Commission,  per  Judge  Cooley,  that  "  it  is  impos- 
sible to  resist  the  conclusion  that  in  finally  rejecting  the  '  long  and 
short  haul  clause '  of  the  house  bill,  which  prescribed  an  inflexible 
rule,  not  to  be  departed  from  in  any  case,  and  retaining  in  substance 
the  fourth  section  as  it  had  passed  the  Senate,  both  houses  under- 
stood that  they  were  not  adopting  a  measure  of  strict  prohibition  in 
respect  to  charging  more  for  the  shorter  than  for  the  longer  distance, 
but  that  they  were,  instead,  leaving  the  door  open  for  exceptions  in 
certain  cases,  and,  among  others,  in  cases  where  the  circumstances 
and  conditions  of  the  traffic  were  affected  by  the  element  of  competi- 
tion, and  where  exceptions  might  be  a  necessity  if  the  competition 
was  to  continue.  Aud  water  competition  was,  beyond  doubt,  espe- 
cially in  view." 

It  is  no  doubt  true  that  in  a  later  case  (Railroad  Commission  of 
Georgia  v.  Clyde  S.  S.  Co.,  5  Interst.  Commerce  Com.  R.  32G)  the 
commission  somewhat  modified  their  holding  in  the  Louisville  & 
Nashville  Railroad  Company  Case,  just  cited,  by  attempting  to 
restrict  the  competition  that  it  is  allowable  to  consider  to  the  cases 
of  competition  with  water  carriers,  competition  with  foreign  rail- 
roads, and  competition  with  railroad  lines  wholly  in  a  single  State; 
but  the  principle  that  competition  in  such  cases  is  to  be  considered 
is  affirmed. 

That  competition  is  one  of  the  most  obvious  and  effective  circum- 
stances that  make  the  conditions  under  which  a  long  and  short  haul 
is  performed  substantially  dissimilar,  and  as  such  must  have  been 
in  the  contemplation  of  Congress  in  the  passage  of  the  act  to  regu- 
late commerce,  has  been  held  by  many  of  the  Circuit  Courts.  It  is 
sufficient  to  cite  a  few  of  the  number:  Ex  parte  Koehler,  31  Fed. 
315;  Missouri  Pacific  Ry.  v.  Texas  &  Pacific  Ry.,  Id.  862;  Inter- 
state Commerce  Commission  v.  Atchison,  T.  &  S.  F.  Railroad,  50 
Fed.  295;  Interstate  Commerce  Commission  v.  New  Orleans  &  Texas 
Pacific  Railroad,  56  Fed.  925,  943;  Behlmer  v.  Louisville  &  Nash- 
ville Railroad,  71  Fed.  835;  Interstate  Commerce  Commission  v. 
Louisville  &  Nashville  Railroad,  73  Fed.  409. 

In  construing  statutory  provisions  forbidding  railway  companies 
from  giving  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  pai'ticular 
description  of  traffic,  in  any  respect  whatever,  the  English  courts 
have  held,  after  full  consideration,  that  competition  between  rival 
lines  is  a  fact  to  be  considered,  and  that  a  preference  or  advantage 
thence  arising   is  not  necessarily  undue  or  unreasonable.      Deuaby 

18 


274:      INTERSTATE   COMMERCE   COM.    V.   ALABAMA   MID.    RAILWAY. 

Main  Colliery  Co.  v,  Manchester,  Sheffield,  &  Lincolnshire  Railway, 
11  App.  Cas.  97;  Phipps  v.  London  &  Northwestern  Railwa}",  [1892] 
2  Q.  B.  229. 

But  the  question  whether  competition,  as  affecting  rates,  is  an 
element  for  the  Commission  and  the  courts  to  consider  in  applying 
the  provisions  of  the  act  to  regulate  commerce,  is  not  an  open  ques- 
tion in  this  court. 

In  Interstate  Commerce  Commission  v.  Baltimore  &  Ohio  Rail- 
road, 145  U.  S.  263,  it  was  said,  approving  observations  made  by 
Jackson,  Circuit  Judge  (43  Fed.  37),  that  the  act  to  regulate  com- 
merce was  "  not  designed  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fares  in  consideration  of  increased  mileage, 
where  such  reduction  did  not  operate  as  an  unjust  discrimination 
against  other  persons  travelling  over  the  road;  in  other  words,  it  was 
not  intended  to  ignore  the  principle  that  one  can  sell  at  wholesale 
cheaper  than  at  retail;  that  it  is  not  all  discriminations  or  prefer- 
ences that  fall  within  the  inhibitions  of  the  statute, — only  such  as 
are  unjust  or  unreasonable";  and,  accordingly,  it  was  held  that  the 
issue  by  a  railway  company,  engaged  in  interstate  commerce,  of  a 
"party-rate  ticket"  for  the  transportation  of  ten  or  more  persons 
from  a  place  situated  in  one  State  or  Territory  to  a  place  situated  in 
another  State  or  Territory,  at  a  rate  less  than  that  charged  to  a  single 
individual  for  a  like  transportation  on  the  same  trip,  does  not  thereby 
make  "  an  unjust  or  unreasonable  charge"  against  such  individual, 
within  the  meaning  of  the  first  section  of  the  act  to  regulate  com- 
merce, nor  make  "  an  unjust  discrimination  "  against  him,  within  the 
meaning  of  the  second  section,  nor  give  "  an  undue  or  unreasonable 
preference  or  advantage  "  to  the  purchasers  of  the  party-rate  ticket, 
within  the  meaning  of  the  third  section. 

In  Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission, 
162  U.  S.  197,  it  was  held  that,  "  in  passing  upon  questions  arising 
under  the  act,  the  tribunal  appointed  to  enforce  its  provisions, 
whether  the  commission  or  the  courts,  is  empowered  to  fully  con- 
sider all  the  circumstances  and  conditions  that  reasonably  apply  to 
the  situation,  and  that,  in  the  exercise  of  its  jurisdiction,  the  tri- 
bunal may  and  should  consider  the  legitimate  interests  as  well  of 
the  carrying  companies  as  of  the  traders  and  shippers,  and,  in  con- 
sidering whether  any  particular  locality  is  subjected  to  an  undue 
preference  or  disadvantage,  the  welfare  of  the  communities  occupy- 
ing the  localities  where  the  goods  are  delivered  is  to  be  considered  as 
well  as  that  of  the  communities  which  are  in  the  locality  of  the  place 
of  shipment;  that  among  the  circumstances  and  conditions  to  be 
considered,  as  well  in  the  case  of  traffic  originating  in  foreign  ports 
as  in  the  case  of  traffic  originating  within  the  limits  of  the  United 
States,  competition  that  affects  rates  should  be  considered,  and  in  de- 
ciding whether  rates  and  charges,  made  at  a  low  rate  to  secure  foreign 


INTERSTATE   COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY.      275 

freii^bts  which  would  otherwise  go  by  other  competitive  routes,  are 
or  are  not  undue  and  unjust,  the  fair  interests  of  the  carrier  com- 
panies and  the  welfare  of  the  community  which  is  to  receive  and 
consume  the  commodities  are  to  be  considered." 

To  prevent  misapprehension,  it  should  be  stated  that  the  conclu- 
sion to  which  we  are  led  by  these  cases,  that,  in  applying  the  pro- 
visions of  the  third  and  fourth  sections  of  the  act,  whicu  make  it 
unlawful  for  common  carriers  to  make  or  give  any  undue  or  unrea- 
sonable preference  or  advantage  to  any  particular  person  or  locality, 
or  to  charge  or  receive  any  greater  compensation  in  the  aggregate 
for  the  transportation  of  passengers  or  of  like  kind  of  property, 
under  substantially  similar  circumstances  and  conditions,  for  a 
shorter  than  for  a  longer  distance  over  the  same  line,  in  the  same 
direction,  competition  which  affects  rates  is  one  of  the  matters  to 
be  considered,  is  not  applicable  to  the  second  section  of  the 
act. 

As  we  have  shown  in  the  recent  case  of  Wight  v.  U.  S.,  167  U.  S. 
512,  the  purpose  of  the  second  section  is  to  enforce  equality  between 
shippers  over  the  same  line,  and  to  prohibit  any  rebate  or  other  de- 
vice by  which  two  shippers,  shipping  over  the  same  line,  the  same 
distance,  under  the  same  ciix'umstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor;  and  we  there  held  that  the  phrase, 
"  under  substantially  similar  circumstances  and  conditions,"  as  used 
in  the  second  section,  refers  to  the  matter  of  carriage,  and  does  not 
include  competition  between  rival  routes. 

This  view  is  not  open  to  the  criticism  that  different  meanings  are 
attributed  to  the  same  words  when  found  in  different  sections  of  the 
act ;  for  what  we  hold  is  that,  as  the  purposes  of  the  several  sections 
are  different,  the  phrase  under  consideration  must  be  read,  in  the 
second  section,  as  I'estricted  to  the  case  of  shippers  over  the  same 
road,  thus  leaving  no  room  for  the  operation  of  competition,  but  that 
in  the  other  sections,  which  cover  the  entire  tract  of  interstate  and 
foreign  commerce,  a  meaning  must  be  given  to  the  phrase  wide 
enough  to  include  all  the  facts  that  have  a  legitimate  bearing  on  the 
situation,  among  which  we  find  the  fact  of  competition  when  it 
affects  rates. 

In  order  further  to  guard  against  any  misapprehension  of  the  scope 
of  our  decision,  it  may  be  well  to  observe  that  we  do  not  hold  that 
the  mere  fact  of  competition,  no  matter  what  its  character  or  extent, 
necessarily  relieves  the  carrier  from  the  restraints  of  the  third  and 
fourth  sections,  but  only  that  these  sections  are  not  so  stringent  and 
imperative  as  to  exclude  in  all  cases  the  matter  of  competition  from 
consideration,  in  determining  the  questions  of  "  undue  or  unreason- 
able preference  or  advantage,"  or  what  are  "  substantially  similar 
circumstances  and  conditions."  The  competition  may  in  some  cases 
be  such  as,  having  due  regard  to  the  interests  of  the  public  and  of 
the  carrier,  ought  justly  to  have  effect  upon  the  rates,  and  in  such 


276      INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY. 

cases  there  is  no  absolute  rule  which  prevents  the  commission  or  the 
courts  from  taking  that  matter  into  consideration. 

It  is  further  contended,  on  behalf  of  the  appellant,  that  the  courts 
below  erred  in  holding,  in  effect,  that  competition  of  carrier  with 
carrier,  both  subject  to  the  act  to  regulate  commerce,  will  justify  a 
departure  from  the  rule  of  the  fourth  section  of  the  act  without 
authority  from  the  Interstate  Commerce  Commission,  under  the  pro- 
viso to  that  section. 

In  view  of  the  conclusion  hereinbefore  reached,  the  proposition 
comes  to  this:  that  when  circumstances  and  conditions  are  substan- 
tially dissimilar  the  railway  companies  can  only  avail  themselves  of 
such  a  situation  by  an  application  to  the  commission. 

The  language  of  the  proviso  is  as  follows :  — 

"That  upon  application  to  the  Commission  appointed  under  the 
provisions  of  this  act,  such  common  carrier  may,  in  special  cases, 
after  investigation  by  the  Commission,  be  authorized  to  charge  less 
for  longer  than  shorter  distances  for  the  transportation  of  persons  or 
property,  and  the  Commission  may  from  time  to  time  prescribe  the 
extent  to  which  such  designated  common  carrier  may  be  relieved  from 
the  operation  of  this  section  of  this  act." 

The  claim  now  made  for  the  Commission  is  that  the  only  body 
which  has  the  power  to  relieve  railroad  companies  from  the  operation 
of  the  long  and  short  haul  clause  on  account  of  the  existence  of  com- 
petition, or  any  other  similar  element  which  would  make  its  applica- 
tion unfair,  is  the  Commission  itself,  which  is  bound  to  consider  the 
question,  upon  application  by  the  railroad  company,  but  whose  de- 
cision is  discretionary  and  unreviewable. 

The  first  observation  that  occurs  on  this  proposition  is  that  there 
appears  to  be  no  allegation  in  the  bill  or  petition  raising  such  an 
issue.  The  gravamen  of  the  complaint  is  that  the  defendant  com- 
panies have  continued  to  charge  and  collect  a  greater  compensation 
for  services  rendered  in  transportation  of  property  than  is  prescribed 
in  the  order  of  the  Commission.  It  was  not  claimed  that  the  defend- 
ants were  precluded  from  showing  in  the  courts  that  the  difference  of 
rates  complained  of  was  justified  by  dissimilarity  of  circumstances 
and  conditions,  by  reason  of  not  having  applied  to  the  Commission 
to  be  relieved  from  the  operation  of  the  fourth  section. 

Moreover,  tliis  view  of  the  scope  of  the  proviso  to  the  fourth  sec- 
tion does  not  appear  to  have  ever  been  acted  upon  oi*  enforced  by  the 
Commission.  On  the  contrary,  in  the  case  of  In  re  Louisville  &  Nash- 
ville Railroad  v.  Interstate  Commerce  Commission,  1  Interst.  Com- 
merce Com.  R.  31,  57,  the  Commission,  through  Judge  Cooley,  said, 
in  speaking  of  the  effect  of  the  introduction  into  the  fourth  section 
of  the  words,  "  under  substantially  similar  circumstances  and  condi- 
tions," and  of  the  meaning  of  the  proviso:  "  That  which  the  act  does 
not  declare  unlawful  must  remain  lawful,  if  it  was  so  before;  and 
that  which  it  fails  to  forbid  the  carrier  is  left  at  liberty  to  do,  with- 


INTERSTATE    COMMERCE    COM.   V.    ALABAMA   MID.    RAILWAY.      Iii 

out  permission  of  any  one.  .  .  .  The  charging  or  receiving  the 
greater  compensation  for  the  sliorter  than  for  the  longer  haul  is  seen 
to  be  forbidden  only  when  both  are  under  substantiall}'  similar  cir- 
cumstances and  conditions;  and  therefore,  if  in  any  case  the  carrier, 
without  first  obtaining  an  order  of  relief,  shall  depart  from  the  gen- 
eral rule,  its  doing  so  will  not  alone  convict  it  of  illegalit}',  since, 
if  the  circumstances  and  conditions  of  the  two  hauls  are  dissimilar, 
the  statute  is  not  violated.  .  .  .  Beyond  question,  ihe  carrier  must 
judge  for  itself  what  are  the  '  substantially  similar  circumstances  and 
conditions '  which  preclude  the  special  rate,  rebate,  or  drawback 
which  is  made  unlawful  by  the  second  section,  since  no  tribunal  is 
empowered  to  judge  for  it  until  after  the  carrier  has  acted,  and  then 
only  for  the  purpose  of  determining  whether  its  action  constitutes  a 
violation  of  law.  The  carrier  judges  on  peril  of  the  consequences, 
but  the  special  rate,  rebate,  or  drawback  which  it  grants  is  not  ille- 
gal when  \^  turns  out  that  the  circumstances  and  conditions  were  not 
such  as  to  forbid  it;  and,  as  Congress  clearly  intended  this,  it  must 
also,  when  using  the  same  words  in  the  fourth  section,  have  intended 
that  the  carrier  whose  privilege  was  in  the  same  way  limited  by  them 
should  in  the  same  way  act  upon  its  judgment  of  the  limiting  cir- 
cumstances and  conditions." 

The  view  thus  expressed  has  been  adopted  in  several  of  the  Circuit 
Courts.  Interstate  Commerce  Commission  v.  Atchison,  Topeka,  &c. 
Railroad,  50  Fed.  295,  300;  Interstate  Commerce  Commission  v.  Cin- 
cinnati, N.  O.  &  Tex.  Pac.  Ry.,  56  Fed.  925,942;  Behlmer  o.  Louisville 
&  Nashville  Railroad,  71  Fed.  835,  839.  And  we  do  not  think  the 
courts  below  erred  in  following  it  in  the  present  case.  We  are  unable 
to  suppose  that  Congress  intended,  by  the  fourth  section  and  the  pro- 
viso thereto,  to  forbid  common  carriers,  in  cases  where  the  circum- 
stances and  conditions  are  substantially  dissimilar,  from  making 
different  rates  until  and  unless  the  Commission  shall  authorize  them 
so  to  do.  Much  less  do  we  think  that  it  was  the  intention  of  Con- 
gress that  the  decision  of  the  Commission,  if  applied  to,  could  not 
be  reviewed  by  the  courts.  The  provisions  of  section  16  of  the  act, 
which  authorize  the  court  to  "  proceed  to  hear  and  determine  the 
matter  speedily  as  a  court  of  equity,  and  without  the  formal  plead- 
ings and  proceedings  applicable  to  ordinary  suits  in  equity,  but  in 
such  manner  as  to  do  justice  in  the  premises,  and  to  this  end  such 
court  shall  have  power,  if  it  think  fit,  to  direct  and  prosecute  in  such 
mode  and  by  such  persons  as  it  may  appoint,  all  such  inquiries  as 
the  court  may  think  needful  to  enable  it  to  form  a  just  judgment  in 
the  matter  of  such  petition,"  extend  as  well  to  an  inquiry'  or  proceed- 
ing under  the  fourth  section  as  to  those  arising  under  the  other  sec- 
tions of  the  act. 

Upon  these  conclusions,  that  competition  between  rival  routes  is 
one  of  the  matters  which  ma}'  lawfully  be  considered  in  making  rates, 
and  that  substantial  dissimilarity  of  circumstances  and  conditions 


278      INTERSTATE   COMMERCE    COM.    V.   ALABAMA   MID.    RAILWAY. 

may  justify  common  carriers  in  charging  greater  compensation 
for  the  transportation  of  lilie  kinds  of  property  for  a  sliorter  than 
for  a  longer  distance  over  the  same  line,  we  are  brought  to  con- 
sider whether,  upon  the  evidence  in  the  present  case,  the  courts 
below  erred  in  dismissing  the  Interstate  Commerce  Commission's 
complaint. 

As  the  third  section  of  the  act,  which  forbids  the  making  or  giv- 
ing any  undue  or  unreasonable  preference  or  advantage  to  any  par- 
ticular person  or  locality,  does  not  define  what,  under  that  section, 
shall  constitute  a  preference  or  advantage  to  be  undue  or  unreason- 
able, and  as  the  fourth  section,  which  forbids  the  charging  or  re- 
ceiving greater  compensation  in  the  aggregate  for  the  transpoi'tation 
of  like  kinds  of  property  for  a  shorter  than  for  a  longer  distance 
over  the  same  line,  under  substantially  similar  circumstances  and 
conditions,  does  not  define  or  describe  in  what  the  similarity  or  dis- 
similarity of  circumstances  and  conditions  shall  consist,  it  cannot  be 
doubted  that  whether,  in  particular  instances,  there  has  been  an 
undue  or  unreasonable  prejudice  or  preference,  or  whether  the  cir- 
cumstances and  conditions  of  the  carriage  have  been  substantially 
similar  or  otherwise,  are  questions  of  fact,  depending  on  the  matters 
proved  in  each  case.  Denaby  Main  Colliery  Co.  v.  Manchester,  «S:c. 
Ry.  Co.,  3  Railway  &  Can.  Cas.  426;  Phipps  v.  London  &  North- 
western Railway,  [1892]  2  Q.  B.  229;  Cincinnati,  N.  O.  &  Tex. 
Pac.  Ry.  V.  Interstate  Commerce  Commission,  162  U.  S.  184,  194; 
Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.   S.    197,   235. 

The  Circuit  Court,  after  a  consideration  of  the  evidence,  expressed 
its  conclusion  thus:  — 

"  In  any  aspect  of  the  case,  it  seems  impossible  to  consider  this 
complaint  of  the  board  of  trade  of  Troy  against  the  defendant  rail- 
road companies,  particularly  the  Midland  and  Georgia  Central  Rail- 
roads, in  the  matter  of  the  charges  upon  property  transported  on  their 
roads  to  or  from  points  east  or  west  of  Troy,  as  specified  and  com- 
plained of,  obnoxious  to  the  fourth  or  any  other  section  of  the  Inter- 
state Commerce  Act.  The  conditions  are  not  substantially  the  same, 
and  the  circumstances  are  dissimilar,  so  that  the  case  is  not  within 
the  statute.  The  case  made  here  is  not  the  case  as  it  was  made  be- 
fore the  Commission.  New  testimony  has  been  taken,  and  the  con- 
clusion reached  is  that  the  bill  is  not  sustained;  that  it  should  be 
dismissed;  and  it  is  so  ordered."     69  Fed.  227. 

The  Circuit  Court  of  Appeals,  in  affirming  the  decree  of  the  Cir- 
cuit Court,  used  the  following  language:  — 

"  Only  two  railroads,  the  Alabama  Midland  and  the  Georgia  Cen- 
tral, .  reach  Troy.  Each  of  these  roads  has  connection  with  other 
lines,  parties  hereto,  reaching  all  the  long-distance  markets  men- 
tioned in  these  proceedings.  The  commission  finds  that  no  depart- 
ure from  the  Ions  and  short  haul  rule  of  the  fourth  section  of  the 


INTERSTATE    COMMEKCE    COM.    V.    ALABAMA   MID.    RAILWAY.      279 

statute,  as  against  Troy,  as  the  shorter  distance  point,  and  in  favor 
of  Montgomery,  as  the  longer  distance  point,  appears  to  be  charge- 
able to  the  Georgia  Central.  The  rates  in  question,  when  separately 
considered,  are  not  unreasonable  or  unjust.  As  a  matter  of  business 
necessity,  they  are  the  same  by  each  of  the  railroads  that  reach  Troy. 
The  Commission  concludes  that  as  related  to  the  rates  to  Mont- 
gomery, Columbus,  and  Eufaula  the  rates  to  and  from  Troy  unjustly 
discriminate  against  Troy,  and,  in  the  case  of  the  Alabama  Midland, 
violate  the  long  and  short  haul  rule. 

"  The  population  and  volume  of  business  at  Montgomery  are 
many  times  larger  than  at  Troy.  There  are  many  more  railway 
lines  running  to  and  through  Montgomery,  connecting  with  all  the 
distant  markets.  The  Alabama  River,  open  all  the  year,  is  capable, 
if  need  be,  of  bearing  to  Mobile,  on  the  sea,  the  burden  of  all  the 
goods  of  every  class  that  pass  to  or  from  Montgomery.  The  compe- 
tition of  the  railway  lines  is  not  stifled,  but  is  fully  recognized, 
intelligently  and  honestly  controlled  and  regulated,  by  the  traftic 
association,  in  its  schedule  of  rates.  There  is  no  suggestion  in  the 
evidence  that  the  traffic  managers  who  represent  the  carriers  that  are 
members  of  that  association  are  incompetent,  or  under  the  bias  of 
any  personal  preference  for  Montgomery  or  prejudice  against  Troy, 
that  has  led  them,  or  is  likely  to  lead  them,  to  unjustly  discriminate 
against  Troy.  When  the  rates  to  Montgomery  were  higher  a  few 
years  ago  than  now,  actual  active  water  line  competition  by  the  river 
came  in,  and  the  rates  were  reduced  to  the  level  of  the  lowest  prac- 
tical paying  water  rates;  and  the  volume  of  carriage  by  the  river  is 
now  comparatively  small,  but  the  controlling  power  of  that  water  line 
remains  in  full  force,  and  must  ever  remain  in  force  as  long  as  the 
river  remains  navigable  to  its  present  capacity.  And  this  water  line 
affects,  to  a  degree  less  or  more,  all  the  shipments  to  or  from  Mont- 
gomery from  or  to  all  the  long-distance  markets.  It  would  not  take 
cotton  from  Montgomery  to  the  South  Atlantic  ports  for  export,  but 
it  would  take  the  cotton  to  the  points  of  its  ultimate  destination,  if 
the  railroad  rates  to  foreign  marts  through  the  Atlantic  ports  were 
not  kept  down  to  or  below  the  level  of  profitable  carriage  by  water 
from  Montgomery  through  the  port  of  Mobile.  The  volume  of  trade 
to  be  competed  for,  the  number  of  carriers  actually  competing  for  it, 
a  constantly  open  river  present  to  take  a  large  part  of  it  whenever 
the  railroad  rates  rise  up  to  the  mark  of  profitable  water  carriage, 
seem  to  us,  as  they  did  to  the  Circuit  Court,  to  constitute  circum- 
stances and  conditions  at  Montgomery  substantially  dissimilar  from 
those  existing  at  Troy,  and  to  relieve  the  carriers  from  the  charges 
preferred  against  them  by  the  Board  of  Trade.  "VVe  do  not  discuss 
the  third  and  fourth  contention  of  the  counsel  for  the  appellant, 
further  than  to  say  that  within  the  limits  of  the  exercise  of  intelli- 
gent good  faith  in  the  conduct  of  their  business,  and  subject  to  the 
two  leading  prohibitions  that  their  charges  shall  not  be  unjust  or 


280      INTERSTATE    COMMERCE    COM.    V.    ALABAMA    MID.    RAILWAY. 

unreasonable,  and  that  they  shall  not  unjustly  discriminate  so  as  to 
give  undue  preference  or  disadvantage  to  persons  or  traffic  similarly 
circumstanced,  the  act  to  regulate  commerce  leaves  common  carriers, 
as  they  were  at  the  common  law,  free  to  make  special  rates  looking 
to  the  increase  of  their  business,  to  classify  their  traffic,  to  adjust 
and  apportion  their  rates  so  as  to  meet  the  necessities  of  commerce 
and  of  their  own  situation  and  relation  to  it,  and  generally  to  man- 
age their  important  interests  upon  the  same  principles  which  are 
regarded  as  sound,  and  adopted,  in  other  trades  and  pursuits.  The 
carriers  are  better  qualified  to  adjust  such  matters  than  any  court  or 
board  of  public  administration,  and,  within  the  limitations  sug- 
gested, it  is  safe  and  wise  to  leave  to  their  traffic  managers  the  ad- 
justing of  dissimilar  circumstances  and  conditions  to  their  business." 
41  U.^S.  App.  453. 

The  last  sentence  in  this  extract  is  objected  to  by  the  commission's 
counsel,  as  declaring  that  the  determination  of  the  extent  to  which 
discrimination  is  justified  by  circumstances  and  conditions  should  be 
left  to  the  carriers.  If  so  read,  we  should  not  be  ready  to  adopt  or 
approve  such  a  position.  But  we  understand  the  statement,  read  in 
the  connection  in  which  it  occurs,  to  mean  only  that,  when  once  a 
substantial  dissimilarity  of  circumstances  and  conditions  has  been 
made  to  appear,  the  carriers  are,  from  the  nature  of  the  question, 
better  fitted  to  adjust  their  rates  to  suit  such  dissimilarity  of  circum- 
stances and  conditions  than  courts  or  commissions;  and  when  we 
consider  the  difficulty,  the  practical  impossibility,  of  a  court  or  a 
commission  taking  into  view  the  various  and  continually  changing 
facts  that  bear  upon  the  question,  and  intelligently  regulating  rates 
and  charges  accordingly,  the  observation  objected  to  is  manifestly 
just.  But  it  does  not  mean  that  the  action  of  the  carriers,  in  fixing 
and  adjusting  the  rates,  in  such  instances,  is  not  subject  to  revision 
by  the  Commission  and  the  courts,  when  it  is  charged  that  such  action 
has  resulted  in  rates  unjust  or  unreasonable,  or  in  unjust  discrimina- 
tions and  preferences.  And  such  charges  were  made  in  the  present 
case,  and  were  considered,  in  the  first  place  by  the  commission, 
and  afterwards  by  the  Circuit  Court  and  by  the  Circuit  Court  of 
Appeals. 

The  first  contention  we  encounter  upon  this  branch  of  the  case  is 
that  the  Circuit  Court  had  no  jurisdiction  to  review  the  judgment 
of  the  Commission  upon  this  question  of  fact;  that  the  court  is 
only  authorized  to  inquire  whether  or  not  the  Commission  has 
misconstrued  the  statute,  and  thereby  exceeded  its  power;  that 
there  is  no  general  jurisdiction  to  take  evidence  upon  the  merits 
of  the  original  controversy;  and,  especiall}^  that  questions  under 
the  third  section  are  questions  of  fact,  and  not  of  power,  and  hence 
unreviewable. 

We  think  this  contention  is  sufficiently  answered  by  simply  refer- 
ring to  those  portions  of  the  act  which  provide  that,  when  the  court 


INTERSTATE    COMMERCE   COM.    V.    ALABAMA    MID.    RAILWAY.      281 

is  invoked  by  the  Commission  to  enforce  its  lawful  orders  or  requiie- 
ments,  the  court  shall  proceed,  as  a  court  of  equity,  to  hear  and 
determine  the  matter,  and  iu  such  manner  as  to  do  justice  in  tlie 
premises. 

In  the  case  of  Cincinnati,  N.  O.  &  Texas  Pac.  Railway  v.  Inter- 
state Commerce  Commission,  1G2  U.  S.  184,  the  findings  of  the 
commission  were  overruled  by  the  Circuit  Court,  after  additional  evi- 
dence taken  in  the  court,  and  the  decision  of  the  Circuit  Court  was 
reviewed  in  the  light  of  the  evidence,  and  reversed,  by  the  Circuit 
Court  of  Appeals;  and  this  court,  in  reference  to  the  argument  that 
the  commission  had  not  given  due  weight  to  the  facts  that  tended  to 
show  that  the  circumstances  and  conditions  were  so  dissimilar  as  to 
justify  the  rates  charged,  held  that,  as  the  question  was  one  of  fact, 
peculiarly  within  the  province  of  the  commission,  and  as  its  con- 
clusions had  been  accepted  and  approved  by  the  Circuit  Court  of 
Appeals,  and  as  this  court  found  nothing  in  the  record  that  made  it 
our  duty  to  draw  a  different  conclusion,  the  decree  of  the  Circuit 
Court  of  Appeals  should  be  afBrmed.  Such  a  holding  clearly  implies 
that  there  was  power  in  the  courts  below  to  consider  and  apply  the 
evidence,  and  in  this  court  to  review  their  decisions. 

So  in  the  case  of  Texas  &  Pacific  Railway  v.  Interstate  Commerce 
Commission,  162  U.  S.  197,  the  decision  of  the  Circuit  Court  of 
Appeals,  which  affirmed  the  validity  of  the  order  of  the  commission, 
upon  the  ground  that,  even  if  ocean  competition  should  be  regarded 
as  creating  a  dissimilar  condition,  yet  that  in  the  case  under  consid- 
eration the  disparity  in  rates  was  too  great  to  be  justified  by  that 
condition,  was  reversed  by  this  court,  not  because  the  Circuit  Court 
had  no  jurisdiction  to  consider  the  evidence,  and  thereupon  to  affirm 
the  validity  of  the  order  of  the  commission,  but  because  that  issue 
was  not  a(!tually  before  the  court,  and  that  no  testimony  had  been 
adduced  by  either  party  on  such  an  issue;  and  it  was  said  that  the 
language  of  the  act,  authorizing  the  court  to  hear  and  determine  the 
matter  as  a  case  of  equity,  "  necessarily  implies  that  the  court  is  not 
concluded  by  the  findings  or  conclusions  of  the  Commission." 

Accordingly  our  conclusion  is  that  it  was  competent,  in  the  pres- 
ent case,  for  the  Circuit  Court,  in  dealing  with  the  issues  raised  by 
the  petition  of  the  Commission  and  the  answers  thereto,  and  for  the 
Circuit  Court  of  Appeals  on  the  appeal,  to  determine  the  case  upon 
a  consideration  of  the  allegations  of  the  parties,  and  of  the  evidence 
adduced  in  their  support;  giving  effect,  however,  to  the  findings  of 
fact  in  the  report  of  the  Commission,  as  prima  facie  evidence  of  the 
matters  therein  stated. 

It  has  been  uniformly  held  by  the  several  Circuit  Courts  and  the 
Circuit  Courts  of  Appeal,  in  such  cases,  that  they  are  not  restricted 
to  the  evidence  adduced  before  the  commission,  nor  to  a  considera- 
tion merely  of  the  power  of  the  commission  to  make  the  particular 
order  under  question,  but  that  additional  evidence  may  be  put  in  by 


282      INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY. 

either  party,  and  that  the  duty  of  the  court  is  to  decide,  as  a  court 
of  equity,  upon  the  entire  body  of  evidence. 

Coming  at  last  to  the  questions  of  fact  in  this  case,  we  encounter 
a  large  amount  of  conflicting  evidence.  It  seems  undeniable,  as  the 
effect  of  the  evidence  on  both  sides,  that  an  actual  dissimilarity  of 
circumstances  and  conditions  exists  between  the  cities  concerned, 
both  as  respects  the  volume  of  their  respective  trade  and  the  compe- 
tition, affecting  rates,  occasioned  by  rival  routes  by  land  and  water. 
Indeed,  the  Commission  itself  recognized  such  a  state  of  facts,  by 
making  an  allowance  in  the  rates  prescribed  for  dissimilarity  re- 
sulting from  competition;  and  it  was  contended  on  behalf  of  the 
Commission,  both  in  the  courts  below  and  in  this  court,  that  the 
competition  did  not  justify  tlie  discriminations  against  Troy  to 
the  extent  shown,  and  that  the  allowance  made  therefor  by  the  Com- 
mission was  a  due  allowance. 

The  issue  is  thus  restricted  to  the  question  of  the  preponderance 
of  the  evidence  on  the  respective  sides  of  the  controversy.  We  have 
read  the  evidence  disclosed  by  the  record,  and  have  endeavored  to 
weigh  it  with  the  aid  of  able  and  elaborate  discussions  by  the  re- 
spective counsel. 

No  useful  purpose  would  be  served  by  an  attempt  to  formally  state 
and  analyze  the  evidence,  but  the  result  is  that  we  are  not  convinced 
that  the  courts  below  erred  in  their  estimate  of  the  evidence,  and 
that  we  perceive  no  error  in  the  principles  of  law  on  which  they  pro- 
ceeded in  the  application  of  the  evidence. 

The  decree  of  the  Circuit  Court  of  Appeals  is  accordingly 

Affirmed. 

Mr.  Justice  Harlan,  dissenting.  —  I  dissent  from  the  opinion  and 
judgment  in  this  case.  Taken  in  connection  with  other  decisions 
defining  the  powers  of  the  Interstate  Commerce  Commission,  the 
present  decision,  it  seems  to  me,  goes  far  to  make  that  Commission 
a  useless  body,  for  all  practical  purposes,  and  to  defeat  many  of  the 
important  objects  designed  to  be  accomplished  by  the  various  enact- 
ments of  Congress  relating  to  interstate  commerce.  The  Commission 
was  established  to  protect  the  public  against  the  improper  practices 
of  transportation  companies  engaged  in  commerce  among  the  several 
States.  It  has  been  left,  it  is  true,  with  power  to  make  reports  and 
to  issue  protests.  But  it  has  been  shorn,  by  judicial  interpretation, 
of  authority  to  do  anything  of  an  effective  character.  It  is  denied 
many  of  the  powers  which,  in  my  judgment,  were  intended  to  be  con- 
ferred upon  it.  Besides,  the  acts  of  Congress  are  now  so  construed 
as  to  place  communities  on  the  lines  of  interstate  commerce  at  the 
mercy  of  competing  railroad  companies  engaged  in  such  commerce. 
The  judgment  in  this  case,  if  I  do  not  misapprehend  its  scope  and 
effect,  proceeds  upon  the  ground  that  railroad  companies,  wher  com- 
petitors for  interstate  business  at  certain  points,  may,  in  order  to 


INTERSTATE    COMMERCE   COM.    V.    ALABAMA   MID.    RAILWAY.      283 

secure  traffic  for  and  at  those  points,  establish  rates  that  will  enable 
them  to  accomplish  that  result,  although  such  rates  may  discriminate 
against  intermediate  points.  Under  such  an  interpretation  of  the 
statutes  in  question,  they  may  well  be  regarded  as  recognizing  the 
authority'  of  competing  railroad  companies  engaged  in  interstate 
commerce  —  when  their  interests  will  be  subserved  thereb}'  —  to  build 
up  favored  centres  of  population  at  the  expense  of  the  business  of 
the  country  at  large.  I  cannot  believe  that  Congress  intended  any 
such  result,  nor  do  I  think  that  its  enactments,  properly  interpreted, 
would  lead  to  such  a  result. 


AA    000  604  275    8 


^iiflllft 


